Citation Nr: 18152217 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-58 898 DATE: November 21, 2018 ORDER Recognition of the appellant as the Veteran's surviving spouse for the purposes of eligibility for payment of VA death benefits is denied. FINDING OF FACT 1. The appellant and the Veteran married in July 1976 and were legally divorced in January 2015; the Veteran died in October 2015. 2. Following the divorce of the Veteran and the appellant in January 2015, the Veteran and the appellant did not thereafter remarry each other, or otherwise hold themselves out as husband and wife. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran's surviving spouse, for purposes of VA death benefits, have not been met. 38 U.S.C. §§ 101, 103 (2012); 38 C.F.R. §§ 3.1 (j), 3.50, 3.53, 3.55 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1969 to February 1972. The Veteran died in October 2015. The appellant seeks recognition as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from an October 2016 administrative decision of Department of Veterans Affairs (VA) Regional Office (RO). 1. Recognition of the appellant as the Veteran's surviving spouse. The evidence shows that the appellant and the Veteran were married in July 1976. They divorced in January 2015 and the Veteran died in October 2015. The appellant contends that she should be recognized as the deceased Veteran’s surviving spouse and granted entitlement to VA death benefits. A surviving spouse of a Veteran may be eligible for dependency and indemnity compensation (DIC) benefits, death pension, and/or accrued benefits, depending on whether the specific requirements for entitlement to such benefits are met. However, the initial requirement for eligibility is that the appellant is a "surviving spouse." 38 C.F.R. § 3.54 (a) and (c); 38 U.S.C. § 5121 (a); 38 C.F.R. § 3.1000. 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, 23 (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). For the purpose of administering Veterans' benefits, the term "surviving spouse" of a Veteran means a person 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, 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. 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). Proof of divorce or termination of a prior marriage can be established by a certified copy or certified abstract of final decree of divorce or annulment specifically reciting the effects of the decree. 38 C.F.R. § 3.205 (b). 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 facts in this case are not in dispute. The evidence of record shows that the appellant and the Veteran divorced in January 2015 and that she was not married to him at the time of his death in October 2015. The record includes an official divorce decree. The appellant has asserted that she divorced the Veteran due to years of dealing with his misconduct in the form of drug and alcohol use as well as gambling. She indicated that his behavior placed significant burdens on her family and required her to support the family financially and manage almost all aspects of home life. The appellant emphasized that while she had been divorced from the Veteran for only nine months, she was married to him for 38 years prior to that, during which time she helped care for the Veteran and frequently took him to his VA medical appointments. 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 (2012); Taylor v. West, 11 Vet. App. 436 (1998); Harvey v. Brown, 6 Vet. App. 416 (1994). The law clearly requires that a surviving spouse be married to the Veteran at the time of 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 met 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, and the Veteran’s October 2015 death certificate indicates that he was divorced. No legal exception is applicable that would allow the appellant to receive VA death benefits. She does not assert, nor does the evidence show, that she and the Veteran had, after the divorce, remarried or otherwise held themselves out as husband and wife. The state of Georgia, which is where the appellant and the Veteran lived at the time they were married, and at the time of the Veteran's death, abolished common law marriage effective January 1, 1997, which precludes the possibility of a valid marriage (re-marriage) on that basis. See Ga. Code Ann. § 19-3-1.1. 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). DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Lewis