Citation Nr: 18140234
Decision Date: 10/02/18	Archive Date: 10/02/18

DOCKET NO. 15-43 827
DATE:	October 2, 2018
ORDER
The appellant is not recognized as the Veteran's surviving spouse for purposes of eligibility for VA death benefits; the appeal is denied.
FINDING OF FACT
The appellant was not married to the Veteran at the time of his death. 
CONCLUSION OF LAW
The criteria for eligibility for VA death benefits are not satisfied.  38 U.S.C. §§ 101, 1310, 1311 (2012); 38 C.F.R. §§ 3.5, 3.50 (2017).  
 
REASONS AND BASES FOR FINDING AND CONCLUSION
1. The appellant is not recognized as the Veteran's surviving spouse for purposes of eligibility for VA death benefits. 
The appellant seeks to establish entitlement to VA disability and indemnity compensation (DIC) as the deceased Veteran’s surviving spouse.  See April 2015 VA Form 21-534EZ.  For the following reasons, the Board finds that the criteria for recognition of the appellant as his surviving spouse are not satisfied.  
A surviving spouse of a veteran may be eligible for VA death benefits, including DIC, death pension, and/or accrued benefits, provided that certain marriage date requirements are satisfied.  38 U.S.C. §§ 101(14), 1102, 1310, 1311, 1521 (2012); 38 C.F.R. §§ 3.5, 3.54, 3.1000 (2017).  
A “surviving spouse” is defined, in pertinent part, as a person who was the spouse of a veteran at the time of the veteran’s death.  38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b); Haynes v. McDonald, 758 F.3d 614, 616 (Fed. Cir. 2015) (holding that there is no exception to the requirement that the surviving spouse and veteran be married at the time of the veteran’s death).  
The appellant and the Veteran divorced in April 1989.  See April 2015 VA Form 21-534EZ; May 1989 VA Examination Report.  The Veteran died in May 2000.  See June 2000 Certificate of Death.  Because the appellant was not married to the Veteran at the time of death, she may not be recognized as his surviving spouse for purposes of eligibility for VA death benefits.  See 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b).  
The appellant states that although she and the Veteran were divorced, she took care of him, including cooking food and delivering it to him.  See May 2015 Letter Attached to Notice of Disagreement.  The law requires that death benefits may only be paid to an eligible survivor, including a surviving spouse.  See, e.g., 38 C.F.R. §§ 3.3, 3.5, 3.54.  As the criteria for surviving spouse status are not satisfied, the appellant is not eligible for such benefits. 
Because the outcome of this claim is determined as a matter of law based on facts that are not in dispute, the benefit-of-the-doubt rule does not apply.  See Sabonis v. West, 6 Vet. App. 426, 430 (1994); cf. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017).
 
P.M. DILORENZO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Rutkin, Counsel