Citation Nr: 18149518
Decision Date: 11/09/18	Archive Date: 11/09/18

DOCKET NO. 18-46 643
DATE:	November 9, 2018
ORDER
Entitlement to recognition as the Veteran’s surviving spouse for the purpose of establishing entitlement to VA death benefits is denied.
FINDING OF FACT
The Appellant and the Veteran divorced in November 2012 and were not subsequently remarried.
CONCLUSION OF LAW
The criteria for recognition as the Veteran’s surviving spouse for the purpose of establishing entitlement to VA death benefits have not been met.  38 U.S.C. §§ 101 (3), 5107 (2012); 38 C.F.R. §§ 3.1, 3.50, 3.53 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from May 1968 to December 1969.  He died in January 2018.  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 decision issued by the Pension Management Center in Philadelphia, Pennsylvania.
Entitlement to recognition as the Veteran’s surviving spouse for the purpose of establishing entitlement to VA death benefits
The evidence shows that the Appellant and the Veteran were married in March 1989.  They divorced in November 2012.  The Veteran died in January 2018.  
The Appellant contends that she should be recognized as the deceased Veteran’s surviving spouse because she was married to him for over 20 years, that she was his caretaker, that she suffered physical and mental abuse over the years, and that it was ultimately the Veteran who pursued the divorce against her will.  
A “surviving spouse” is defined as a person who was the spouse of a 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) (2012); 38 C.F.R. § 3.50 (2018).
The issue presented in the instant case was directly addressed by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Haynes v. McDonald, 785 F.3d 614 (Fed. Cir. 2015).  In Haynes, the Federal Circuit affirmed a decision of the Court of Appeals for Veterans Claims (CAVC) that interpreted 38 C.F.R. § 3.50(b)(1) to require that a veteran and claimed surviving spouse be married at the time of the veteran's death.  Id.  at 616.  The Federal Circuit stated that the CAVC did not err in holding that there was no exception to the marriage requirement when a veteran and former spouse divorced on the basis of abuse.  Id.  
The Appellant has acknowledged that she was divorced from the Veteran at the time of his death.  The Board acknowledges her assertions that the divorce was due to the fault of the Veteran.  Nevertheless, the provision relating to the misconduct of a veteran in 38 C.F.R. § 3.50(b)(1) serves only as a limited exemption for abuse victims who fail to meet the cohabitation requirements of 38 C.F.R. § 3.50 (2018). See Burden v. Shinseki, 727 F.3d 1161, 1170-71 (Fed. Cir. 2013).  VA has no provision in its laws to award death benefits to a "divorced surviving spouse," only to an individual who is the veteran's spouse at the time of his death.
As the Appellant’s marriage to the Veteran was terminated by divorce in 2012, a valid marriage did not exist at the time of the Veteran’s death in January 2018.  Therefore, she cannot be recognized as his surviving spouse and the claim must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  
 
J. A. Anderson
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Saudiee Brown, Associate Counsel