Citation Nr: 1800553 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-11 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC), death pension, and accrued benefits, including recognition as the Veteran's surviving spouse. WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel INTRODUCTION The Veteran served honorably on active duty in the United States Army from April 1969 to April 1971 and had service in the Republic of Vietnam. He died in November 2010, and the Appellant is the Veteran's ex-spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 letter of determination issued by the Department of Veterans Affairs (VA) Regional Office Pension Management Center in St. Paul, Minnesota. Jurisdiction has since been transferred to the VA Regional Office (RO) in Columbia, South Carolina. The Appellant testified in a travel board hearing before the undersigned Veterans Law Judge in September 2017. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The Appellant and the Veteran were married in October 1971. 2. The Appellant's marriage to the Veteran was dissolved by divorce in July 1979; they did not remarry after their divorce. CONCLUSION OF LAW There is no legal basis to recognize the Appellant as a surviving spouse for purposes of receiving VA death benefits. 38 U.S.C. §§ 101 (3), 103, 1102 (2012); 38 C.F.R. §§ 3.1 (j), 3.5, 3.50, 3.53, 3.54 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A and 38 C.F.R. § 3.159. As explained in further detail below, the law, and not the evidence, is dispositive of the claim; as such, the duties imposed by VA's duty to notify and assist are not applicable in this matter. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002). II. Legal Analysis The Appellant is currently seeking entitlement to DIC, death pension, and accrued benefits based on her status as the Veteran's surviving spouse at the time of his death. Subject to certain requirements, VA death benefits may be paid to a surviving spouse of a Veteran. 38 U.S.C. § 1102; 38 C.F.R. §§ 3.5, 3.54. An individual claiming to be the spouse of a veteran has the burden of coming forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). A "surviving spouse" is defined as a person of the opposite sex whose marriage to the veteran meets the requirements of § 3.1 (j) and who was the spouse of a veteran at the time of the veteran's death and: (1) lived with the veteran continuously from the date of the marriage to the date of the veteran's death except where there was separation due to the misconduct of the veteran or procured by the veteran without fault of the spouse; and (2) has not remarried or has not since the death of the veteran lived with another person of the opposite sex and held him or herself out openly to the public to be the spouse of such other person. 38 U.S.C. §§ 101 (3), 103; 38 C.F.R. § 3.50 (b). "Marriage" is defined as a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. § 3.1 (j). After careful review of the evidence of record, the Board finds that recognition as the Veteran's surviving spouse should be denied. The evidence shows that the Veteran and the Appellant were married in California in October 1971. In hearing testimony, the Appellant reported that she and the Veteran later moved to Oklahoma. Shortly thereafter, the Appellant returned to California, while the Veteran remained in Oklahoma. An Oklahoma divorce decree is of record which shows that the Appellant's marriage to the Veteran ended in July 1979. The decree specifically noted findings by the court that the Appellant and the Veteran were separated, the Appellant having absconded with their child. Although the Veteran's death certificate lists the Appellant as his spouse, there is no evidence that the Appellant and the Veteran ever remarried after their 1979 divorce. Indeed, the evidence shows that the Veteran entered into a second marriage with F.J. in October 1979. Correspondence from the Veteran documents that he and the Appellant were together for 10 years and lists F.J. as his spouse. A divorce decree for the Veteran's second marriage is not currently of record, but the evidence suggests that the marriage ended in divorce in September 1997. During a December 2007 VA examination, the examiner noted that the Veteran reported having been married twice: "both were approximately ten years and both kind of on and off." The evidence also shows that the Veteran spent decades in an Oklahoma prison, and that he ultimately died while incarcerated. The Board acknowledges the Appellant's contentions that she was still legally married to the Veteran at his death. The Appellant stated that despite their separation, she and the Veteran communicated on a regular basis, and she was unaware of a divorce. However, in a December 2004 letter, the Appellant stated that the Veteran's behavior destroyed their marriage. Later, in a March 2014 letter, the Appellant acknowledged that she was aware of the Veteran's second marriage to F.J. Moreover, the evidence suggests that the Appellant considered herself to be in a common law marriage with S.D. at the time of the Veteran's death. In any case, the Board finds the evidence settled that the Appellant and the Veteran divorced in 1979. Therefore, the Appellant was not married to the Veteran at the time of his death in November 2010. Absent a finding that the Appellant was the Veteran's spouse at the time of his death, the Board need not address the issue of cohabitation or remarriage as the threshold criteria for designation as a "surviving spouse" has not been met. Therefore, recognition as the Veteran's surviving spouse is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, because the preponderance of the evidence is against the Appellant's claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Entitlement to DIC, death pension, and accrued benefits, including recognition as the Veteran's surviving spouse, is denied. ____________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs