Citation Nr: 18154398 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 15-06 886 DATE: November 29, 2018 ORDER Recognition of the appellant as the surviving spouse of the Veteran for the purpose of receiving VA death pension benefits is denied. FINDING OF FACT 1. The Veteran and appellant married in February 1977. 2. The Veteran died in June 1977, less than one year after the date of marriage. 3. The appellant remarried in 1989. Her second marriage ended in divorce in 1997. CONCLUSION OF LAW The criteria for recognition of the appellant as the surviving spouse of the Veteran for the purpose of receiving VA death pension benefits have not been satisfied. 38 U.S.C. § 101, 103, 1115, 5110(f) (2012); 38 C.F.R. § 3.1, 3.50, 3.54, 3.204, 3.205 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION REFERRED The issue of entitlement to service connection for the cause of the Veteran’s death has been raised by the record in a November 2018 Appellate Brief, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). Entitlement to recognition of the Appellant as the surviving spouse of the Veteran for the purpose of receiving VA death pension benefits. For VA purposes, a marriage is considered 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 U.S.C. § 103 (c); 38 C.F.R. § 3.1(j). A surviving spouse is defined as (1) a person in a recognized marriage for VA purposes; (2) who was the spouse of the Veteran at the time of the Veteran’s death; (3) who lived with the Veteran continuously from the date of marriage to the date of the Veteran’s death except, as provided in 38 C.F.R. § 3.53 (a), where there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse; and (4) who, except as provided in 38 C.F.R. § 3.55, has not remarried or has not since the death of the Veteran, and after September 19, 1962, lived with another person of the opposite sex 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). Under 38 C.F.R. § 3.55 (a)(1), the remarriage of a surviving spouse shall not bar the furnishing of benefits to such surviving spouse if the marriage: (i) was void, or (ii) has been annulled by a court having basic authority to render annulment decrees, unless it is determined by the Department of Veterans Affairs that the annulment was obtained through fraud by either party or by collusion. Under 38 C.F.R. § 3.55 (2), on or after January 1, 1971, remarriage of a surviving spouse terminated prior to November 1, 1990, or terminated by legal proceedings commenced prior to November 1, 1990, by an individual who, but for the remarriage, would be considered the surviving spouse, shall not bar the furnishing of benefits to such surviving spouse provided that the marriage: (i) has been terminated by death, or (ii) has been dissolved by a court with basic authority to render divorce decrees unless the Department of Veterans Affairs determines that the divorce was secured through fraud by the surviving spouse or by collusion. VA death benefits may be paid to a surviving spouse who was married to the Veteran: (1) one year or more prior to the Veteran’s death or (2) for any period of time, if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C. §§ 1102, 1304, 1541 (2012); 38 C.F.R. § 3.54 (2018). One claiming to be the spouse of a veteran has the burden to come forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The threshold question that must be addressed in any claim for VA benefits is whether the person seeking the benefit is a proper claimant for the benefit sought. If the appellant is not established as a proper claimant, the claim can proceed no further. The appellant has the burden to establish her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). A Marriage Certificate from the state of Nevada shows that the appellant and the Veteran were married in February 1977. The Veteran’s Certificate of Death shows that he died in June 1977. The death certificate indicates that he was married to the appellant at the time of his death. For the purpose of establishing entitlement to death benefits, the Veteran must have been married to the appellant for over one year or for any period of time if a child was born of the marriage. See 38 C.F.R. § 3.54. In this case, the appellant and Veteran were married for approximately five months prior to his death and in her March 2013 claim, the appellant indicated that a child was not born of the marriage or prior to the marriage. Thus, she is not eligible for VA death pension benefits. Moreover, the appellant has reported in a February 2015 substantive appeal that she remarried twice after the Veteran’s death. In her March 2013 claim, she indicated that she remarried in 1989, and while this marriage reportedly ended in divorce in 1997, it is, nonetheless, a bar to eligibility for death pension benefits. See 38 U.S.C. § 101 (3); 38 C.F.R. § 3.50 (b). As such, the Board finds that recognition of the appellant as the Veteran’s surviving spouse for the purpose of establishing eligibility to VA death pension benefits must be denied as a matter of law. The legal criteria governing the status of a deceased Veteran’s widow as a surviving spouse are clear and specific, and the Board is bound by them and is without authority to grant benefits on an equitable basis. See 38 U.S.C.§§ 503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christine C. Kung