Citation Nr: 18144602 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-31 660 DATE: October 24, 2018 ORDER Entitlement to accrued benefits is denied. Entitlement to service connection for the cause of the Veteran’s death is denied. Entitlement to VA survivors' death pension benefits is denied. FINDINGS OF FACT 1. The Veteran died in February 2013. 2. The Veteran and the appellant divorced in November 2004. 3. The preponderance of the evidence is against showing they reentered marriage thereafter, including under common law. CONCLUSIONS OF LAW 1. The claim for VA accrued benefits lacks legal merit. 38 U.S.C. § 5121 (2014); 38 C.F.R. § 3.1000 (a) (2018). 2. The claim for DIC based on the cause of death of a veteran lacks legal merit. 38 U.S.C. §§ 1310, 1312, 5103, 5103A(a), (b), (g), 5107 (2014); 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.303, 3.312 (2018). 3. The claim for VA survivors’ death pension benefits lacks legal merit. 38 U.S.C. §§ 101 (3), 1541 (2014); 38 C.F.R. §§ 3.1, 3.3 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran serviced in the U.S. Army from November 1961 to November 1963, and from November 1979 to February 1992. The Veteran died in February 2013. The appellant seeks to be recognized as the Veteran’s surviving spouse for purpose of obtaining VA death pension benefits. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March and September 2013 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Management Center in St. Paul, Minnesota, which denied the appellant’s claim for DIC, death pension, and accrued benefits claims because VA did not owe the Veteran any money (accrued benefits) and appellant was not recognized as the Veteran’s surviving spouse. 1. Entitlement to service connection for the cause of death of the Veteran, entitlement to VA survivors' death pension benefits, and entitlement to accrued benefits. The appellant claims entitlement to recognition as the Veteran’s surviving spouse for the purpose of receiving death benefits. Such benefits may be paid to the surviving spouse of a Veteran in certain circumstances. However, the Board must determine whether the appellant is entitled to recognition as the Veteran’s surviving spouse for the purpose of receiving these VA benefits. Death benefits are payments made by VA to a surviving spouse because of a service-connected death occurring after December 31, 1956. 38 U.S.C. § 101 (14); 38 C.F.R. § 3.5 (a)(1). For VA purposes, a “spouse” is defined as a person “whose marriage to the veteran meets the requirements of [38 C.F.R.] § 3.1(j)” under 38 C.F.R. § 3.50 (a). “Marriage” is defined as a marriage valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the rights to benefits accrued. 38 U.S.C. § 103 (c); 38 C.F.R. § 3.1 (j). A valid marriage may be established by various types of documentary evidence together with the claimant’s certified statement concerning the date, place and circumstances of dissolution of any prior marriage, provided that such facts, if they were to be corroborated by the evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205 (a). A “surviving spouse” is currently defined in the regulation as a person who was the spouse of the Veteran at the time of the Veteran’s death and who (1) lived with the Veteran continuously since the time of the parties’ marriage to the date of the Veteran’s death, unless there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse, and (2) except as provided in 38 C.F.R. § 3.55 (pertaining to certain terminations of subsequent marriages), has not remarried and has not held him or herself out to the public as the spouse with whom he or she was then cohabiting. 38 C.F.R. § 3.50 (b). Death benefits may be paid to a surviving spouse if the marriage to the Veteran occurred before or during his or her service or, if the marriage took place after service, if (1) the claimant married the Veteran before the expiration of 15 years after the period of service in which the injury or disease that caused the Veteran’s death was incurred or aggravated, or (2) the claimant was married to the Veteran for 1 year or more prior to the Veteran’s death, or (3) the claimant was married to the Veteran for any period of time if a child was born to the marriage or was born to the couple before their marriage. 38 U.S.C. § 1304; 38 C.F.R. § 3.54. After a full review of the record, the Board concludes that a preponderance of the evidence is against a finding of recognition of the appellant as the surviving spouse of the Veteran for the purpose of receiving VA death benefits. The record shows that the Veteran died in February 2013. In May 2013, the appellant submitted a claim for VA death benefits as the surviving spouse of the Veteran. The record includes a marriage license between the Veteran and the appellant showing they were married in March 1991. The record also contains a divorce decree from the District Court, Dallas County, Texas (303rd Judicial District). The divorce judgement was “rendered and the parties divorced on September [redacted], 2004, but the decree signed November [redacted], 2004.” The divorce decree is signed by a district court judge and by attorneys for both the Veteran and the appellant. The appellant has argued that the 2004 divorce decree is “illegal” because it was not signed by the Veteran or the appellant. She also submitted court dismissal documents, which she alleges are the court dismissing the divorce for “want of prosecution” in 2006 and 2008. The Board notes that the dismissal documents do not show that they were dismissals of divorce proceedings. The appellant also submitted a September 2004 demand letter from the attorney that represented her in the divorce, requesting money and stating that the attorney would not sign the divorce paperwork if she did not hear from the appellant. The attorney subsequently signed the divorce decree; this letter further confirms that the appellant participated in the divorce. The Board also finds that the 2004 divorce decree is not “illegal,” as it was signed by a judge and attorneys for both parties. The appellant has not submitted any evidence that she and the Veteran remarried after the September 2004 divorce, or any evidence that could be considered for a common law marriage. At the time of his death, the Veteran was receiving VA disability benefits as a “single veteran without dependents.” He additionally reported to VA treatment providers that he was divorced. The appellant noted that the Veteran was living in care facilities at the time of his death, and there is no indication that the Veteran and appellant were residing together. At the time of his death the Veteran was residing in a different city from the appellant. (Continued on the next page)   The Veteran’s son informed VA of his passing. The Veteran’s son paid for the Veteran’s funeral and burial plot, and requested funeral benefits from VA. The Veteran’s son was contacted to provide the information on hid death certificate after passing away in a rehabilitation center. Notably, the appellant filed to have his death certificate changed from listing the Veteran as divorced to married and signed this request before a notary; based on the available evidence, this appears to be fraudulent. As cited above, the criteria for recognition as a surviving spouse for VA purposes require that a death benefit applicant must be the spouse of the Veteran at the time of the Veteran’s death. See 38 U.S.C. § 101 (3); 38 C.F.R. § 3.50 (b). As discussed above, a surviving spouse is defined by law as a person who was the spouse of the Veteran at the time of the Veteran’s death, the appellant’s divorce from the Veteran bars her from eligibility for status as his surviving spouse. 38 U.S.C. § 101 (3) (“surviving spouse means... a person... who was the spouse of a Veteran at the time of the Veteran’s death”); 38 C.F.R. § 3.50 (b)(2). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel