Citation Nr: 1804850 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-06 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for purposes of entitlement to additional dependency and indemnity compensation (DIC) benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from May 1961 to May 1964 and from August 1967 to August 1970. The Veteran passed away in June 1989, and the appellant was the Veteran's former surviving spouse from the time of the Veteran's death until her remarriage in December 1990. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In that rating decision, the RO denied entitlement DIC benefits because the appellant was no longer recognized as the Veteran's surviving spouse as a result of her remarriage. FINDINGS OF FACT 1. The Veteran and the appellant were legally married at the time of the Veteran's death in June 1989. 2. The appellant, born in May 1950, remarried in December 1990, at the age of 40, and has remained married since that time. 3. Service connection for the cause of the Veteran's death was granted in a September 1994 rating decision, and the appellant was paid DIC as the Veteran's surviving spouse from June 1, 1989 (the first day of the month of the Veteran's death) until December 1, 1990, the first day of the month during which the appellant remarried. CONCLUSION OF LAW The criteria for entitlement to recognition as the surviving spouse of the Veteran for the purpose of establishing entitlement to additional VA death benefits are not met. 38 U.S.C. § 103 (2012); 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.205 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 C.F.R. § 3.50(a), a spouse is a person whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1(j) (2017). VA defines a "marriage" as a marriage valid under the law of the place where the parties resided at the time of marriage, or the laws of the place where the parties resided when the right to benefits accrued. 38 U.S.C. § 103(c) (2012); 38 C.F.R. § 3.1 (j); Hopkins v. Nicholson, 19 Vet. App. 165, 169 (2005). The facts in this case are not in dispute. The Veteran and the appellant were legally married at the time of the Veteran's death in June 1989. Dependency and Indemnity Compensation (DIC) is a payment made by VA to a "surviving spouse," child, or parent because of a service-connected death occurring after December 31, 1956. 38 U.S.C. § 101(14) (2012); 38 C.F.R. § 3.5 (a)(1) (2017). The term "surviving spouse" means a person (1) whose marriage to the Veteran was valid under the law of the place of residence at the time of the marriage or when the right to benefits accrued; (2) who was the spouse of a Veteran at the time of the Veteran's death; (3) who lived with the Veteran continuously from the date of marriage to the date of the Veteran's death (i.e. continuous cohabitation); (4) and who, except as provided in 38 C.F.R. § 3.55, has not remarried or has not since the death of the Veteran (and after September 19, 1962) lived with another person and held himself or herself out openly to the public to be the spouse of such other person. See 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b) (2017). Because the Veteran and the appellant were legally married at the time of the Veteran's death, the appellant became the Veteran's surviving spouse at the time of his death, and remained so until she remarried in December 1990. The Veteran served in Vietnam, and died from lung cancer. Service connection for the cause of the Veteran's death was subsequently awarded in a September 1994 rating decision. The appellant was notified of her entitlement to DIC in an October 1994 letter which detailed her monthly DIC payments from June 1, 1989 until December 1, 1990, the first day of the month of her remarriage. Additionally, as a Nehmer class member, the appellant was awarded accrued benefits for the period February 1, 1989 to June 1, 1989 in the amount of $5448.00. See November 1994 correspondence to the appellant; 38 C.F.R. § 3.816(d). In June 2011, the appellant filed a new DIC claim. As noted above, although remarriage is generally a bar to eligibility for status as a surviving spouse, there are exceptions to this general rule. See 38 C.F.R. §§ 3.55 (a)(1)-(10) (2017); see also 38 U.S.C.A. §§ 103(d), 1311(e). Eligibility to be considered a surviving spouse for purposes of obtaining DIC benefits may be restored, in certain circumstances, to individuals who subsequently remarry after the death of a Veteran. See 38 C.F.R. § 3.55(a)(1)-(8) (exceptions 1-8). However, each of the circumstances set forth in 38 C.F.R. § 3.55 (a)(1)-(8) that allows for reinstatement for the eligibility of benefits requires that the subsequent remarriage be terminated. Additionally, there are additional provisions of law permitting the award of DIC, in certain circumstances, for a surviving spouse who subsequently remarries after age 57 (and remains remarried). 38 U.S.C. § 103(d)(2)(b); 38 C.F.R. § 3.55(a)(10). Here, the uncontested facts reveal that the appellant remarried at age 40. Unfortunately, none of the exceptions apply in this case because the appellant was under age 57 at the time of her remarriage, and there is no indication that such remarriage has terminated. Accordingly, the criteria for recognition as the Veteran's surviving spouse for purposes of entitlement to additional DIC benefits are not met. Moreover, according to the record, the effective date of December 1, 1990 for the discontinuance of the appellant's DIC payments was also proper. Except as otherwise specified, the effective date of discontinuance of DIC benefits shall be fixed in accordance with the facts found. 38 U.S.C. § 5112(a) (2012); 38 C.F.R. § 3.500 (2017). The effective date of a discontinuance of DIC benefits by reason of remarriage of a payee shall be the last day of the month before such remarriage occurs. 38 U.S.C. § 5112(b)(1); 38 C.F.R. §§ 3.500 (n)(1); 3.502(d). In this case, the appellant received monthly DIC payments through November 1990. As the appellant remarried in December 1990, payment of DIC benefits to the appellant through November 30, 1990, with discontinuance beginning thereafter, was proper. See October 1994 correspondence to the appellant. In such a case, where the law is dispositive, the claim must be denied due to a lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As the essential facts are not in dispute and the law is dispositive, the Board need not further address VA's duty to notify and assist as it pertains to these aspects of the claim. See, e.g., Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Accordingly, the appellant is not eligible for additional DIC benefits as the remarried widow of the Veteran. ORDER The appeal is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs