Citation Nr: 18151124 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-50 167 DATE: November 16, 2018 ORDER Entitlement to recognition as the surviving spouse for purposes of VA Dependency and Indemnity Compensation (DIC) is denied. FINDINGS OF FACT 1. The Veteran and the appellant married in September 1957. 2. The Veteran and the appellant divorced in April 1974. 3. The Veteran died in June 2012, and the claimant was not married to the Veteran at the time of his death. CONCLUSION OF LAW The criteria for eligibility status as a surviving spouse for purposes of DIC benefits are not met. 38 U.S.C. §§ 101, 5107 (2012); 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.53, 3.54, 3.102 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from March 1946 to March 1949, and from August 1957 to April 1977. He died in June 2012. The appellant is claiming recognition as the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). Here, however, the notification and assistance provisions are not applicable, as the claim cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Entitlement to recognition as the surviving spouse for purposes of DIC is denied. The appellant contends that she is entitled to DIC benefits as the surviving former spouse of the Veteran. She relates that she and the Veteran divorced after 17 years of marriage. The appellant seeks DIC benefits as the ex-wife of the Veteran. She has submitted a marriage certificate showing that she and the Veteran were married in September 1957 and a divorce decree showing that she and the Veteran divorced in April 1974. She does not contest the fact that she and the Veteran were divorced in April 1974, never remarried, and were divorced at the time of the Veteran’s death in June 2012. Benefits may be paid to the surviving spouse of a Veteran if certain requirements are met. 38 U.S.C. §§ 1304, 1310, 1311, 1318, 1541. A “surviving spouse” is 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 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, 3.53. The claimant argues that despite her divorce from the Veteran, she was married to the Veteran for 17 years, and therefore, qualifies as a surviving spouse for VA DIC purposes. Unfortunately, the regulation specifically uses the term surviving spouse. To qualify as a surviving spouse, the person’s marriage to the Veteran must meet the requirements of either 38 C.F.R. § 3.1 (j) or 38 C.F.R. § 3.52. 38 C.F.R. § 3.50(b). Section 3.1(j) provides that a ‘marriage’ is ‘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); see 38 U.S.C. § 103 (c). The claimant and the Veteran were legally married in 1957 but were divorced in 1974. The claimant and the Veteran were divorced, not separated. This bars her from eligibility for status as the Veteran’s surviving spouse regardless the duration of the marriage, and regardless of whether they share a child, her marital status after the divorce, or any unrelated entitlement to his social security benefits. 38 U.S.C. § 101 (3); 38 C.F.R. § 3.50 (b). Thus, under the general definition of a surviving spouse, once the claimant became divorced from the Veteran, she can no longer 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). No legal exception is applicable that would allow the claimant to receive benefits. She does not assert, nor does the evidence show, that that she and the Veteran had, after the divorce, remarried, attempted to remarry or otherwise held themselves out as husband and wife to trigger the provisions of 38 C.F.R. § 3.52. Consequently, recognition of the claimant as the Veteran’s surviving spouse is precluded by law. Therefore, her claim must be denied as a matter of law. Sabonis, at 426. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Tunis, Associate Counsel