Citation Nr: 18153467 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 12-21 198 DATE: November 27, 2018 ORDER Entitlement to dependency and indemnity compensation (DIC) is denied. Entitlement to accrued benefits is denied. Entitlement to death pension is denied. FINDINGS OF FACT 1. The Veteran and Appellant were validly married at the time of his death in January 1957. 2. At the time of his death, the Veteran was not service connected for any disabilities, receiving any periodic monthly benefits nor had any pending claims for service connection or any other periodic monthly benefits. 3. The Appellant remarried twice following the Veteran’s death; first in May 1958, which was terminated by a divorce in July 1962, then in May 1970, which was also terminated by a divorce in October 1973. CONCLUSIONS OF LAW 1. The criteria for entitlement to DIC have not been met. 38 U.S.C. §§ 101, 103, 1310 (2012); 38 C.F.R. §§ 3.1, 3.5, 3.50, 3.55 (2017). 2. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 101, 103, 5121 (2012); 38 C.F.R. §§ 3.1, 3.50, 3.55, 3.1000 (2017). 3. The criteria for entitlement to death pension have not been met. 38 U.S.C. §§ 101, 103, 1521, 1541 (2012); 38 C.F.R. §§ 3.1, 3.3, 3.50, 3.55 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1951 to June 1955, which included service during the Korean conflict. 1. The issues of entitlement to DIC; entitlement to accrued benefits; and entitlement to death pension. The Appellant contends that she is entitled to DIC, accrued benefits and death pension following the Veteran’s death. See Application for DIC, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable) (the Appellant indicated she was not seeking service connection for cause of death). DIC is payable to the surviving spouse of a deceased veteran in the event of a service connected death. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. Accrued benefits are payable to the surviving spouse for any periodic monthly benefits to which the Veteran was entitled to at the time of his death, to include claims pending at the time of his death, based on the evidence of record at the time of his death, which were due and unpaid. 38 U.S.C. § 5121; 38 C.F.R. §§ 3.160, 3.1000 (2017); see also Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Death pension is a benefit payable to the surviving spouse of a veteran who served during a period of war who died due to a non-service connected disability. 38 U.S.C. §§ 1521(j), 1541; 38 C.F.R. §§ 3.2, 3.3(b)(4) (2017). As an initial matter, the Board must determine whether the Appellant qualifies as the Veteran’s surviving spouse for either DIC, accrued benefits or death pensions purposes. A “surviving spouse” is a person whose marriage to the veteran was valid under the law of the place where the parties resided at the time of marriage, when the right to benefits accrued, and who was the spouse of the veteran at the time of death provided he or she (1) lived with the veteran continuously from the date of marriage to the date of the veteran’s death, with the exception where they were separated due to the misconduct of or procured by the veteran without the fault of the spouse; and (2) has not remarried or lived with another person of the opposite sex and held themselves out to be the spouse of such other person openly to the public since the veteran’s death. 38 U.S.C. § 103; 38 C.F.R. §§ 3.1(j), 3.50. Notwithstanding the above, remarriage by the surviving spouse shall not bar the furnishing of benefits if the marriage was void or has been annulled by a court having basic authority to render annulment decrees, unless it is determined by the VA the annulment was obtained through fraud by either party or by collusion. 38 C.F.R. § 3.55(a)(i), (ii). Further, on or after January 1, 1971, if the remarriage is terminated prior to November 1, 1990, or terminated by legal proceedings commenced prior to November 1, 1990, by an individual who, but for remarriage, would be considered the surviving spouse, it shall not be a bar to the furnishing of benefits provided the marriage has been terminated by death or has been dissolved by a court with basic authority to render divorce decrees, unless it is determined by the VA the divorce was secured through fraud by the surviving spouse or by collusion. 38 C.F.R. § 3.55(2). There are no other exceptions bearing on remarriage and the restoration of eligibility as the surviving spouse for accrued benefits or death pension purposes. However, with respect to DIC, the following additional exceptions may be applicable. On or after October 1, 1998, if the remarriage of a surviving spouse is terminated by death, divorce or annulment, it shall not be a bar to DIC, unless it is determined by the VA the divorce or annulment was secured through fraud or collusion. 38 C.F.R. § 3.55(3). On or after January 1, 2004, the remarriage of a surviving spouse after the age of 57 shall not bar DIC. A surviving spouse who remarried after the age of 57, but before December 16, 2003, may be eligible for DIC provided the application for such benefits was received by the VA before December 16, 2004. 38 C.F.R. § 3.55(10). Here, the evidence of record shows the Veteran and Appellant were validly married to each other at the time of his death in January 1957. January 1957 Death Certificate; May 1956 Marriage Certificate. Following his death, she remarried in May 1958 to C.T.A., but this marriage was terminated by divorce in July 1962. July 1962 Decree of Divorce. At the time of her marriage to C.T.A., she was 21 years of age. See Application for DIC, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable) (the Appellant indicated her date of birth was January 7, 1937). Thereafter, she remarried once more in May 1970 to J.W.V. At the time of her marriage to J.W.V., she was 33 years of age. This marriage was also terminated by divorce in October 1973. May 1970 Marriage Certificate; October 1973 Decree of Divorce. The Appellant’s remarriage in May 1958 to C.T.A. terminated her eligibility as the Veteran’s surviving spouse for DIC, accrued benefits and death pension purposes. Although her remarriage to C.T.A. was terminated by divorce, this occurred prior to January 1, 1971. Before January 1, 1971, the only exception permitting restoration of her eligibility as the surviving spouse following remarriage for DIC, accrued benefits or death pension purposes was if the remarriage was void or annulled. At no time has she argued her marriage to C.T.A. was void. Her subsequent marriage to and divorce from J.W.V. is irrelevant because her eligibility as the surviving spouse following her remarriage to C.T.A. was never restored. Considering the above, the Appellant is not entitled to DIC, accrued benefits or death pension as a matter of law because she does not qualify as the Veteran’s surviving spouse. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Suh, Associate Counsel