Citation Nr: 18148335 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-36 012 DATE: November 8, 2018 ORDER Entitlement to recognition as the Veteran’s surviving spouse for the purpose of VA death benefits is denied. The termination of Dependency and Indemnity Compensation benefits effective October 1, 2015 was proper. FINDINGS OF FACT 1. The appellant and the Veteran were divorced effective March 1, 1992; they did not remarry at any time prior to his death in March 2015. 2. In July 2015, the appellant was appropriately notified of VA’s proposal to terminate Dependency and Indemnity Compensation benefits and provided 60 days to respond; the benefits were then terminated effective October 1, 2015. CONCLUSIONS OF LAW 1. There is no legal basis to recognize the appellant as a surviving spouse for the purpose of receiving VA death benefits. 38 U.S.C. §§ 101(3), 103; 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53. 2. The termination of Dependency and Indemnity Compensation benefits effective October 1, 2015 was proper. 38 U.S.C. § 1310, 5112; 38 C.F.R. §§ 3.50, 3.105, 3.500(b)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1962 to December 1976. He passed away in March 2015. The appellant is his former spouse. In October 2016, a travel board hearing was held before the undersigned Veterans Law Judge. In June 2015, VA awarded Dependency and Indemnity Compensation to the appellant. In late July 2015, VA notified the appellant that on further review of the file, it was determined that she and the Veteran were not married at the time of his death, and as such she could not be recognized as his surviving spouse. Thus, she was not eligible to receive death benefits and VA proposed to terminate her benefit payments. In October 2015, VA terminated the benefits effective October 1, 2015. The appellant disagreed with the decision and perfected this appeal. On review, the appeal essentially involves two issues – whether the claimant is entitled to recognition as the Veteran’s surviving spouse; and whether the termination of Dependency and Indemnity Compensation benefits effective October 1, 2015 was proper. Entitlement to recognition as the Veteran’s surviving spouse The term “surviving spouse” means a person whose marriage to the 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 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 the fault of the spouse); and who has not remarried or (in cases not involving remarriage) 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 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). “Marriage” means a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. § 3.1(j). Evidence of record shows the Veteran and the appellant were married in November 1966 and divorced in August 1974. Thereafter, they remarried in January 1977 and again divorced effective March 1, 1992. At the hearing and in various statements, the appellant reported that due to the Veteran’s service-connected schizophrenia, he was emotionally and physically abusive. She acknowledged they were divorced at the time of his death, but requested special consideration in that she had to divorce him due to his schizophrenia. The appellant provided credible testimony concerning the circumstances of her divorce and the Board is sympathetic. Notwithstanding, the evidence is clear. The Veteran and the appellant were legally divorced in the State of California effective March 1, 1992. They did not remarry prior to his death in March 2015. The appellant does not dispute this. Hence, she was not his spouse at the time of his death. There is no basis for considering whether a common-law marriage existed as California does not recognize common-law marriage. See Cal. Fam. Code § 300(a). Further, the appellant testified that after the second divorce they never held themselves out as being husband and wife. As to her arguments concerning fault, this is only for consideration in addressing the lack of continuous cohabitation when the parties remained married. 38 C.F.R. § 3.53. Hence, this regulation is not applicable in this case. In summary, the appellant and the Veteran were legally divorced at the time of his death. Hence, as a matter of law she is not entitled to recognition as his surviving spouse for the purpose of VA death benefits. Whether the termination of Dependency and Indemnity Compensation benefits effective October 1, 2015 was proper? Dependency and Indemnity Compensation benefits are payable to a surviving spouse of a qualifying veteran who died from a service-connected disability. 38 U.S.C. § 1310. As set forth, the appellant is not entitled to recognition as the Veteran’s surviving spouse. Thus, she is not entitled to Dependency and Indemnity Compensation benefits as a matter of law. In her initial application, she reported that they were divorced and this was supported by court documents. The Veteran’s death certificate also identified his marital status as divorced. Hence, the initial award of benefits was solely the result of VA error. See August 2015 Administrative decision. Where a reduction or discontinuance of benefits is warranted by reason of information received concerning marital status, a proposal for the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that the benefits should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final adverse action will be taken and the award will be reduced or discontinued effective as specified under the provisions of 38 C.F.R. §§ 3.500 through 3.503 of this part. 38 C.F.R. § 3.105(h). Where an award is reduced or discontinued because of administrative error or error in judgment the provisions of 38 C.F.R. § 3.500(b)(2) will apply. 38 C.F.R. § 3.105(a). VA sent the appellant a letter in July 2015 notifying her of the proposed termination and the reasons therefore. She was also provided 60 days for the submission of evidence. On October 14, 2015, VA terminated the benefits effective October 1, 2015 in accordance with 38 C.F.R. § 3.500(b)(2) (date of last payment on an erroneous award based solely on administrative error). On review, the termination of Dependency and Indemnity Compensation benefits effective October 1, 2015 was proper. Again, the Board sympathizes with the appellant. If she wishes to petition for equitable relief, she must file such a petition with the Secretary given that the authority to award equitable relief under law is committed to the sole discretion of the Secretary. The Board is without jurisdiction to consider that which is solely committed to the Secretary’s exercise of that discretion. McCay v. Brown, 9 Vet. App. 183, 189 (1996). DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Carsten, Counsel