Citation Nr: 18142684
Decision Date: 10/17/18	Archive Date: 10/16/18

DOCKET NO. 16-35 078
DATE:	October 17, 2018
ORDER
Entitlement to death benefits is denied. 	
FINDINGS OF FACT
1. The Veteran passed away in September 1993.
2. The appellant remarried in August 1996 before attaining the age of 57.
CONCLUSION OF LAW
The criteria for entitlement to death benefits have not been met.  38 U.S.C. §§ 101(3), 103, 1310, 5107; 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.54, 3.55, 3.102, 3.312, 3.816.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran served on active duty in the United States Army from July 1965 to July 1967.  The appellant contends that she is the Veteran’s surviving spouse.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 decision.
1. Entitlement to death benefits
The appellant contends that death benefits are warranted because she is the Veteran’s surviving spouse and the Veteran’s cause of death was due to in-service herbicide-agent exposure.  For the reasons discussed below, the Board finds that the appellant does not qualify as the Veteran’s surviving spouse and therefore does not qualify for death benefits.
Dependency and Indemnity Compensation (DIC) benefits may be awarded to a veteran’s surviving spouse, children, or parents for death resulting from a service-connected or compensable disability.  38 U.S.C. § 1310; 38 C.F.R. § 3.312.  Under 38 C.F.R. § 3.50, a “surviving spouse” is a person whose marriage to the veteran meets the requirements outlined in 38 C.F.R. § 3.1(j), who was the spouse of the veteran at the time of the veteran’s death and (1) who lived with the veteran continuously 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 fault of the spouse; and (2) except as provided in 38 C.F.R. § 3.55, has not remarried. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b).  Following a surviving spouse’s remarriage, VA DIC benefits terminate.  Id.  However, remarriage of the surviving spouse of a veteran shall not bar the furnishing of benefits to the surviving spouse of the veteran if the remarriage occurs after the surviving spouse attains the age of 57.  38 U.S.C. §§ 103(d)(2)(B), 103(d)(5); 38 C.F.R. § 3.55.
The Board finds that death benefits are not warranted in this case because the appellant’s second marriage certificate indicates that the appellant was younger than age 57 at the time of her remarriage.  The appellant acknowledged this fact in the June 2016 substantive appeal.  Thus, the appellant cannot qualify as a surviving spouse.  
The Board notes the appellant’s argument that she would have qualified for death benefits if she had filed a claim at the time of the Veteran’s death, prior to her remarriage.  The appellant did not file such a claim, however, therefore an award for DIC cannot be granted for the period between the Veteran’s death and the appellant’s remarriage. See 38 C.F.R § 3.816(d).
 
 
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	W. Ripplinger, Associate Counsel