Citation Nr: 18147704 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 15-15 584 DATE: November 5, 2018 ORDER Entitlement to recognition of the appellant as the surviving spouse of the Veteran for the purposes of establishing eligibility for VA benefits is denied. FINDINGS OF FACT 1. The appellant and the Veteran married in September 1996 and were legally divorced in January 2007, prior to the Veteran’s death in December 2013. 2. Following the divorce of the Veteran and the appellant in January 2007, the Veteran and the appellant did not thereafter remarry each other. CONCLUSION OF LAW The appellant may not be recognized as the surviving spouse of the Veteran for the purpose of entitlement to VA benefits. 38 U.S.C. §§ 101, 103, 5107; 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.102. REASONS AND BASES FOR FINDING AND CONCLUSION 1. Whether the appellant is entitled to be recognized as the decedent Veteran's spouse for VA benefit purposes The evidence shows that the appellant and the Veteran were married in September 1996. They divorced in January 2007. The Veteran died in December 2013. The appellant contends that she should be recognized as the deceased Veteran’s surviving spouse and granted entitlement to VA death benefits. When a Veteran dies, the surviving spouse may be eligible for VA death benefits, to include dependency and indemnity compensation (DIC), death compensation, and death pension. 38 U.S.C. §§ 1121, 1310, 1541; 38 C.F.R. § 3.50(a). Consequently, surviving spouse status is a threshold requirement for both DIC and death pension benefits. For a person to establish recognition as a surviving spouse of a deceased Veteran, there must be evidence of a valid marriage to the Veteran under the laws of the appropriate jurisdiction. Aguilar v. Derwinski, 2 Vet. App. 21 (1991). The validity of a marriage is determined based upon the law of the jurisdiction where the parties resided at the time of marriage or when the rights to benefits accrued. 38 C.F.R. § 3.1(j). A surviving spouse for VA purposes is defined as 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. VA defines a marriage as a marriage valid under the law of the place where the parties resided at the time of marriage, or the laws of the place where the parties resided when the right 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 those 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). The validity of a divorce decree, regular on its face, will be questioned by VA only when that validity is put in issue by a party thereto or a person whose interest in a claim for VA benefits would be affected thereby. 38 C.F.R. § 3.206. The evidence of record shows that the appellant and the Veteran divorced in January 2007 and that she was not married to him at the time of his death in December 2013. The appellant has not disputed those facts. The law clearly requires that a surviving spouse be married to the Veteran at the time of his death in order to be considered the surviving spouse. As the appellant was not married to the Veteran at the time of his death, the appellant is not the Veteran’s surviving spouse for the purpose of establishing entitlement to certain VA benefits. 38 C.F.R. §§ 3.1(j), 3.50. There is no exception to the requirement that an appellant must be married to a Veteran at the time of the Veteran’s death in order to be considered a surviving spouse. A surviving spouse is defined by law as a person who was legally married to the Veteran at the time of the Veteran’s death. The appellant and the Veteran were divorced, rather than separated. That bars the appellant from recognition as the Veteran’s surviving spouse, regardless of the grounds of the divorce. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). Thus, under the general definition of a surviving spouse, once the appellant became divorced from the Veteran, she no longer can meet the criteria to achieve the status of a surviving spouse of the Veteran for purposes of VA benefits. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). Here, the divorce decree is of record. No legal exception is applicable that would allow the appellant to receive VA death benefits. The Veteran and the appellant married and lived in the province of Quebec. However, after the appellant and the Veteran divorced, the appellant remained in Quebec while the Veteran moved to the state of Vermont. The state of Vermont, which is where the Veteran lived at the time of his death, does not recognize common law marriages. 15 V.S.A. § 8. Therefore, there is no legal way to recognize the appellant as having contracted a common law marriage in Vermont. Unfortunately, the Board is without authority to grant the benefit sought on an equitable basis, and instead is constrained to follow the specific provisions of law. 38 U.S.C. §§ 503, 7104; Taylor v. West, 11 Vet. App. 436 (1998); Harvey v. Brown, 6 Vet. App. 416 (1994). Although the Board is sympathetic to the appellant’s claim, the law, and not the facts, is dispositive of the claim as she does not meet the legal criteria to establish status as the deceased Veteran’s surviving spouse for purposes of VA benefits. Accordingly, the Board is left with no recourse but to deny as a matter of law the claim for VA death benefits. Sabonis v. Brown, 6 Vet. App. 426 (1994). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Layton, Counsel