Citation Nr: 18144993 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 11-20 012 DATE: October 25, 2018 ORDER Entitlement to recognition as the Veteran's surviving spouse for the purposes of VA benefits is denied. FINDING OF FACT The Veteran is not deceased. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran's surviving spouse for VA benefits purposes have not been met. 38 U.S.C. §§ 1102, 1304, 1541 (West 2012); 38 C.F.R. §§ 3.1(j), 3.50 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1970 to January 1973. The appellant contends that she is the Veteran’s surviving spouse. However, based on the information below, there is no documentation to support her contention that the Veteran is deceased. Therefore, the appellant is not entitled to recognition as the Veteran’s surviving spouse for the purposes of VA benefits. The appellant seeks to be recognized as the Veteran’s surviving spouse for VA benefits purposes. According to the appellant’s October 2017 application for benefits, the Veteran has been missing since 1978, and is allegedly presumed dead. However, the appellant also alleged eventually divorced the Veteran. When a veteran dies, his or her surviving spouse may be eligible for certain VA death benefits, to include DIC, death pension, and accrued benefits. See 38 U.S.C. §§ 1102, 1304, 1310, 1541; 38 C.F.R. § 3.50(b). Consequently, “surviving spouse” status is a threshold determination in VA death benefit cases. For VA purposes, a surviving spouse is a person whose marriage to a veteran meets the requirements of 38 C.F.R. § 3.1(j) and 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) has not remarried or has not, since the death of the veteran, lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. §§ 3.50(b), 3.53. Here, the evidence of record reveals that the appellant and the Veteran were married December 1970 in Howard County, Maryland. The appellant contends that she divorced the Veteran after he went missing, but the Board notes that there is no documentation of a final decree of divorce. Additionally, the appellant contends that the Veteran went missing at some point in 1978, but an exact date of his death, or a death certificate were not provided. The Board remanded the appeal in December 2017 for additional development. In an August 2018 Social Security Administration (SSA) Data Inquiry response, the SSA indicated that the Veteran is alive, living freely and in receipt of SSA benefits and medical treatment from a VA Medical Center (VAMC) in Nevada. The Veteran’s full name, date of birth and social security number were all verified and found to be correct. In September 2018, the appellant submitted a statement in support of her claim indicating that she has been contacted by the Nevada VAMC in an effort to contact the Veteran because he supplied VA the appellant’s name, number and email address. The appellant indicated that the person receiving treatment is not in fact the Veteran, but someone pretending to be him. She additionally noted that if it is indeed the Veteran, she wants his contact information so that she could pursue reinstating her child support claim against the Veteran. To date, the appellant has not submitted any additional evidence to support her contention that the Veteran is in fact deceased; but there is evidence supporting the fact that he is alive. As the Veteran is not deceased, the appellant cannot be considered the surviving spouse of the Veteran for VA purposes. Recognition of the appellant as the Veteran’s surviving spouse is precluded by law, and her claim must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Warren, Associate Counsel