Citation Nr: 18140593 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 15-10 412A DATE: October 3, 2018 ORDER Restoration of dependency and indemnity compensation (DIC) benefits from January 1, 2006 to February 29, 2016 is denied. FINDING OF FACT Following the Veteran’s death in January 2005, the Appellant remarried on January 14, 2006, prior to attaining the age of 57, and remained validly married until February 17, 2016. CONCLUSION OF LAW The criteria for entitlement to restoration of DIC benefits from January 1, 2006 to February 29, 2016 have not been met. 38 U.S.C. §§ 103, 1310 (2012); 38 C.F.R. §§ 3.1, 3.5, 3.55 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to December 1969, during the Vietnam Era. The Veteran passed away in January 2005. January 2005 Certificate of Death. The Appellant was married to the Veteran at the time of his death. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to restoration of DIC benefits from January 1, 2006 to February 29, 2016. The Appellant contends that she is entitled to the restoration of DIC benefits from January 1, 2006 to February 29, 2016. See February 2013 Statement in Support of Claim; see generally October 2016 Board Hearing Transcript. DIC benefits are payable to the surviving spouse of a deceased veteran in the event of a service-connected death. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. A “surviving spouse” is defined as a person whose marriage to the veteran was valid under the law of the place where the parties resided at the time of marriage, when the right to benefits accrued, and who was the spouse of the veteran at the time of death provided he or she (1) lived with the veteran continuously from the date of marriage to the date of the veteran’s death, with the exception where they were separated due to the misconduct of or procured by the veteran with the fault of the spouse; and (2) has not remarried or lived with another person of the opposite sex and held themselves out to be the spouse of such other person openly to the public since the veteran’s death. 38 U.S.C. § 103; 38 C.F.R. §§ 3.1(j), 3.50. In December 2003, Congress passed the Veterans Benefit Act of 2003, which amended Title 38 of the United States Code. Veterans Benefit Act of 2003, Pub.L. No. 108-183, 101, 117 Stat. 2651, 2652-53 (2003) (codified in 38 U.S.C. § 103(d)(2)(B) (2012)). Specifically, it authorized the payment of DIC benefits for a surviving spouse even if they remarried provided the remarriage occurred after attaining the age of 57. Id.; 38 C.F.R. § 3.55(a)(10). In addition to the above, eligibility as the surviving spouse for purposes of restoration of DIC benefits may be resumed in certain circumstances for individuals who remarry after the veteran’s death before reaching the age of 57. The remarriage of a surviving spouse is not a bar to benefits if the marriage was void; has been annulled, unless it was procured through fraud by either party or by collusion; terminated by death or divorce, unless it was procured through fraud by either party or by collusion; or the individual ceased living with another person and holding themselves out openly to the public as that person’s spouse. 38 U.S.C. § 103(d)(1), (d)(2)(A), (d)(3); 38 C.F.R. § 3.55. Here, the Appellant was validly and continuously married to the Veteran from November 1979 until his death in January 2005. November 1979 Application for Marriage Certificate; March 2005 Certificate of Death. Following the Veteran’s death, she remarried in January 2006 to J.B. January 2006 Marriage Certificate. At the time of her marriage to J.B., she was 54 years of age. See November 1979 Application for Marriage License (noted the Appellant was born in January 1952); May 2012 Letter from the Appellant (the Appellant acknowledged she was 54 years old at the time she married J.B.). Subsequently, on February 17, 2016, her marriage to J.B. was dissolved. February 2016 Final Judgement of Dissolution. Prior to the Appellant’s divorce from J.B., in a February 2011 letter, she was notified by VA that a special review of the Veteran’s claims file was being conducted in accordance with the orders of the United States District Court in the Nehmer class action to determine whether the Veteran qualified as a Nehmer class member based on the addition of new diseases eligible for presumptive service connection due to herbicide agent exposure while serving in the Republic of Vietnam. Nehmer v. United States Veterans’ Administration, 712 F. Supp. 1404 (N.D. Cal. 1989); Nehmer v. United States Veterans’ Administration, 32 F. Supp. 2d 1175 (N.D. Cal. 1999); Nehmer v. Veterans’ Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002); see also 38 C.F.R. § 3.816 (2018). When the Appellant first received this notice, she did not inform VA of her marriage to J.B., as the notice did not request any additional information or documentation needed pertaining to her marital status. May 2012 Letter from the Appellant. However, she pointed out that she began submitting documentation to VA with her new married name beginning in March 2011. Later, when she spoke with a VA representative about the pending review, she informed the representative that she remarried in 2006. At that time, she was advised by the representative that she may still be entitled to benefits for the period prior to her remarriage. Upon review, in a December 2011 rating decision, the RO granted service connection for coronary artery disease, a total disability rating based on individual unemployability for purpose of entitlement to retroactive benefits, Dependents’ Education Assistance, as well as service connection for cause of death. December 2011 Rating Decision; April 2012 Letter to the Appellant. It became apparent to the Appellant the VA did not update its records to reflect her remarriage when she began receiving payments in accordance with the December 2011 rating decision under the prior married name. May 2012 Letter from the Appellant; July 2012 Letter from the Appellant. She promptly contacted the RO to ensure the VA updated their records and to request the payments be reissued to her new married name. Upon receiving notice of the Appellant’s remarriage to J.B., the RO issued a June 2012 administrative decision, finding that she was no longer eligible to receive VA benefits as a result of her marriage to J.B. effective January 1, 2006. The following month, the RO issued another administrative decision adjusting the VA benefits payable to her. In pertinent part, the RO advised her that she was being paid DIC benefits from February 1, 2005 to December 31, 2005, explaining that DIC benefits were being terminated after December 31, 2005 due to her remarriage. July 2012 Administrative Decision. In a July 2012 letter, the Appellant avowed that following multiple contacts with VA representative she was informed by the RO that she would be entitled to DIC benefits until the date she remarried. Thereafter, she would be entitled to benefits when she turned 57 years of age. July 2012 Letter from the Appellant. Subsequently, in a November 2012 letter, she relayed that an RO assistant director informed her that she would not be entitled to benefits when she turned 57 years of age because she remarried before she turned 57 unless J.B. passed away or they divorced. November 2012 Letter from the Appellant. In a January 2015 letter, the Appellant averred that she had no knowledge of the laws and regulations discontinuing eligibility for DIC benefits if remarriage occurred before the age of 57. Following the dissolution of the Appellant’s marriage to J.B., the RO issued a June 2016 administrative decision restoring her DIC benefits as a result of the termination of her marriage, effective March 1, 2016. Here, the evidence of record is undisputed the Appellant remarried before she turned 57 years of age. While the Board is sympathetic to her argument that she was unaware of the laws and regulations discontinuing eligibility for DIC benefits if remarriage occurred before the age of 57, ignorance of the law cannot be the basis for the restoration of DIC benefits. See Bryan v. West, 13 Vet. App. 482, 486-87 (2000) (holding that “everyone dealing with the Government is charged with knowledge of the federal statutes and lawfully promulgated agency regulations. [sic] Thus, regulations are binding on all who seek to come within their sphere, ‘regardless of actual knowledge of what is in the regulations or of the hardship resulting from innocent ignorance’”), citing Federal Crop Ins., Corp. v. Merrill, 332 U.S. 380, 385, 68 S.Ct. 1, 3-4 (1947). The statutory and regulatory provisions are unambiguous. If a surviving spouse remarries before the age of 57, DIC benefits may be reinstated only in the event the marriage was void, annulled or terminated by death or divorce. From January 2006 to February 17, 2016, the Appellant remained validly married to J.B. Although Veterans Benefit Act of 2003 authorized the payment of DIC benefits for a surviving spouse even if they remarried as long as the remarriage occurred after turning 57 years of age, it did not include a provision specifying DIC benefits may be restored to an individual upon reaching the age of 57 if they remarried prior to that time and remained married. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (holding that the plain language of the statute must be given effect unless a literal application would lead to an absurd result). As another matter, the Appellant urges the Board to grant the restoration of her DIC benefits from January 1, 2006 to February 29, 2016 based on principles of equity given the Veteran’s honorable service, the delay in acknowledging the detrimental effects of the Veteran’s exposure to herbicide agents and conflicting information she has been provided by VA employees regarding her eligibility for DIC benefits. See November 2012 Letter from the Appellant (stating that every case should have the right to be heard and allowances be made for extenuating circumstances); see generally October 2016 Board Hearing Transcript. Although the Board recognizes that 38 U.S.C. § 503, vests the Secretary with the authority to act upon requests for equitable relief if benefits have not been provided by reason of an administrative error on the part of the government or any of its employees or if a surviving spouse has suffered loss as a consequence of reliance upon a determination by the VA of eligibility or entitlement to benefits, without the knowledge that it was erroneously made. 38 U.S.C. § 503(a), (b) (2018). This power is solely within the discretion of the Secretary and is not within the Board’s purview. See Harvey v. Brown, 6. Vet. App. 416, 425 (1994) (noting that action under 38 U.S.C. § 503(a) is committed “to the sole discretion of the Secretary” and the Board and the Court are without jurisdiction to review the Secretary’s exercise of that discretion), citing Darrow v. Derwinski, 2 Vet. App. 303, 306 (1992). Further, the Board is without authority to remand or refer the matter for equitable relief. 38 C.F.R. § 2.7(c) (2018); Mayer v. Brown, 37 F.3d 618, 620 (1994) (holding that an action of the Chairman is not a decision of the Board). Regrettably, there are no other statutory provisions which would enable the Board to grant the restoration of DIC benefits from January 1, 2006 to February 29, 2016. See Sabonis, 6 Vet. App. at 430 (holding that in cases where the law and not the evidence is dispositive, the claim should be denied because of the absence of legal merit or lack of entitlement under the law). Accordingly, the Board finds the preponderance of the evidence does not support restoration of the Appellant’s DIC benefits for the period from January 1, 2006 to February 29, 2016. Cf. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; cf. also Fagan v. Shinseki, 573 F.3d 1282, 1287 (2009). (CONTINUED ON NEXT PAGE) Notwithstanding the Board’s decision above, the Appellant is not prohibited from requesting equitable relief from the Secretary pursuant to 38 U.S.C. § 503. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Suh, Associate Counsel