Citation Nr: 18147538 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 14-16 096 DATE: November 5, 2018 ORDER Recognition as the surviving spouse of the Veteran for the purpose of establishing basic eligibility for Dependency and Indemnity Compensation (DIC) is denied. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The Appellant was married to the Veteran from June 1958 until his death in December 1960; she remarried in April 1971 at age 35 and remains remarried. 2. The Appellant filed an informal claim for DIC benefits in April 2013 and a formal claim for DIC and accrued benefits in December 2013. CONCLUSIONS OF LAW 1. The requirements for basic eligibility for DIC benefits as the surviving spouse of the Veteran are not met. 38 U.S.C. §§ 101, 1310, 1311, 5110(a); 38 C.F.R. §§ 3.5, 3.50, 3.55, 3.400. 2. The claim of entitlement to accrued benefits is untimely. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1947 to June 1949. He died in December 1960, and the Appellant was his surviving spouse at the time of his death. The Appellant subsequently remarried in April 1971. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Appellant requested a Board hearing and, after two postponements at the Appellant’s request, a hearing was scheduled for September 2018. The Appellant did not request another postponement, did not appear for the hearing, has not submitted good cause for the failure to appear and has not requested that the hearing be rescheduled. Accordingly, the Appellant is deemed to have waived her hearing request. See 38 C.F.R. §§ 20.703, 20.704(d). The Board may therefore proceed to adjudicate the appeal. The Appellant’s Contentions The Appellant contends that she is entitled to DIC benefits for the period between the Veteran’s death in December 1960 and her remarriage in April 1971. The Appellant also seeks accrued benefits. With respect to the latter claim, she makes no specific assertions. 1. Appellant is not entitled to DIC benefits because she is not a surviving spouse Generally, DIC benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a)(1). The term “surviving spouse” means a person (1) whose marriage to the Veteran was valid under the law of the place of residence at the time of the marriage or when the right to benefits accrued; (2) who was the spouse of a Veteran at the time of the Veteran’s death; (3) who lived with the Veteran continuously from the date of marriage to the date of the Veteran’s death (i.e. continuous cohabitation); (4) and who, except as provided in 38 C.F.R. § 3.55, has not remarried or has not since the death of the Veteran (and after September 19, 1962) lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). On December 16, 2003, Congress amended Title 38 of the United States Code to authorize DIC benefits for surviving spouses even if they remarried, provided that the remarriage occurred after the surviving spouse attained the age of 57. Veterans Benefit Act of 2003, Pub.L. No. 108-183, § 101, 117 Stat. 2651, 2652-53 (2003) (codified at 38 U.S.C. § 103 (d)(2)(B)); see 38 C.F.R. § 3.55(a)(10)). However, if such a surviving spouse remarried prior to December 16, 2003, the claimant will only be eligible for DIC compensation if the DIC application was received prior to December 16, 2004. 38 C.F.R. § 3.55(a)(10)(ii). Here, the Appellant first filed an informal claim for DIC benefits in April 2013 and filed a formal claim for DIC benefits in December 2013. The Appellant acknowledges that she remarried in April 1971 and, based on her date of birth listed in the April 2013 informal claim, she was 35 years old at the time of her remarriage. There is no indication in the record that the Appellant’s current marriage has ended. Based on these facts, at the time of the Appellant’s application for DIC benefits, she did not meet the statutory requirements as a “surviving spouse” or the limited exception applicable to surviving spouses who remarry after the age of 57. 38 C.F.R. § 3.55(a)(10). See Carroll v. McDonald, 767 F.3d 1368, 1372 (2014). Nor is there any basis to award DIC benefits for the period of time between the Veteran’s death and the Appellant’s remarriage. Generally, the effective date of an award of DIC benefits based on an original claim will be the date of receipt of the claim or the date entitlement rose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. As noted, Appellant first filed a claim for DIC benefits in April 2013, after her remarriage. Accordingly, the Appellant did not meet the statutory definition of a “surviving spouse” at the time of the application, and the Board may not grant a benefit that the Appellant is not eligible to receive under statutory law. See Davenport v. Principi, 16 Vet. App. 522, 528 (2002); Harvey v. Brown, 6 Vet. App. 416, 424 (1994). As there are no provisions that provide a basis for eligibility for DIC benefits, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). (CONTINUED ON NEXT PAGE) 2. The application for accrued benefits is untimely Accrued benefits are defined as “periodic monetary benefits... authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid....” 38 U.S.C. § 5121(a); 38 C.F.R. 3.1000(a). An application for accrued benefits is required to be filed within 1 year after the date of death. 38 U.S.C. § 5121(c); 38 C.F.R 3.1000(c). See Shields v. Brown, 8 Vet. App. 346, 348-49 (1995). As the Veteran died in December 1960, the December 2013 claim for accrued benefits is untimely and must be denied. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Snyder, Associate Counsel