Citation Nr: 18139989
Decision Date: 10/02/18	Archive Date: 10/02/18

DOCKET NO. 16-09 959
DATE:	October 2, 2018
ORDER
The appellant is not entitled to recognition as the Veteran’s surviving spouse for purposes of establishing eligibility for dependency and indemnity compensation (DIC) benefits.
FINDINGS OF FACT
1. The Veteran and the appellant were married in September 1970; they divorced in April 1987.  
2. The Veteran died in March 2014.
CONCLUSION OF LAW
The criteria for recognition of the appellant as the Veteran’s surviving spouse have not been met.  38 U.S.C. §§ 101(31), 103, 1102, 1304, 1541; 38 C.F.R. §§ 3.50, 3.53, 3.54, 3.205.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran served on active duty from December 1970 to October 1972; he died in March 2014.  The appellant is his ex-spouse.  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  
The appellant requested a Board hearing in her Form 9 substantive appeal; however, in July 2016 she indicated that she no longer sought a Board hearing.
Whether the appellant is entitled to recognition as the Veteran’s surviving spouse for purposes of establishing eligibility for DIC benefits.
A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation.  38 U.S.C. § 1310; 38 C.F.R. § 3.312.  In order for the appellant to be recognized as a “surviving spouse,” the evidence must demonstrate that the appellant was married to the Veteran at the time of the Veteran’s death; lived continuously with the Veteran from the date of marriage to the date of the Veteran’s death (except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse); and has not remarried or, after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of another person.  38 U.S.C. § 101(31); 38 C.F.R. § 3.50(b).  
The evidence establishes that the Veteran and the appellant married in September 1970 and divorced in April 1987.  09/04/2014, Marriage Certificate; 09/04/2014, Divorce Decree.  The Veteran died in March 2014.  05/16/2014, Death Certificate.  The appellant does not dispute the validity of the divorce.  See 09/04/2014, Application for DIC.  Accordingly, the Board finds that the appellant was not married to the Veteran at the time of his death and thus finds that, as a matter of law, she is not a surviving spouse for VA purposes.  See 38 U.S.C. § 101(31); 38 C.F.R. § 3.50(b).
 
Paul Sorisio
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J.A. Gelber, Associate Counsel