Citation Nr: 18154420 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-48 555 DATE: November 29, 2018 ORDER Recognition of appellant as surviving spouse for purposes of establishing eligibility for VA benefits is denied. FINDING OF FACT 1. The appellant and the Veteran married in June 1979 and were legally divorced in August 1987; the Veteran died in September 2011. 2. Following the divorce of the Veteran and the appellant in August 1987, the Veteran and the appellant did not thereafter remarry each other, or otherwise hold themselves out as husband and wife. CONCLUSION OF LAW The appellant may not be recognized as the surviving spouse of the Veteran for purpose of entitlement to VA benefits. 38 U.S.C. §§ 101, 103, 5107 (2012); 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.102 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1974 to August 1978; he has unverified service from January 1965 to August 1974. He died in September 2011, and the appellant claims recognition as his surviving spouse for VA death benefits. Recognition as Surviving Spouse When a Veteran dies, his or her surviving spouse may be eligible for VA death benefits, to include dependency and indemnity compensation (DIC), death compensation, and death pension. See 38 U.S.C. §§ 1121, 1310, 1541 (2012); 38 C.F.R. § 3.50(a) (2017). Consequently, “surviving spouse” status is a threshold requirement for both DIC and death pension benefits. 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. See 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) (2017). A surviving spouse for VA purposes is defined as a person whose marriage to a Veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the Veteran at the time of the Veteran’s death; and (1) 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 fault of the spouse; and (2) has not remarried or has not since the death of the Veteran lived with another person and held himself/herself out openly to the public to be the spouse of such other person. See 38 C.F.R. §§ 3.50(b), 3.53 (2017). 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) (2012); 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 such 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 such 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 August 1987, and that the appellant was not married to the Veteran at the time of his death in 2011. The record includes a death certificate that shows the Veteran’s marital status at the time of death as divorced; and the application for DIC and death pension shows the relationship of appellant to the Veteran as divorced widow. The appellant claims that it is unfair to deny her entitlement to DIC and death pension due to being divorced because living with the Veteran became dangerous for her due to the Veteran’s actions and misconduct. The Veteran would not accept help for his posttraumatic stress disorder (PTSD) symptoms; and although the appellant sought counseling, the Veteran would not participate. The appellant ended the marriage after the Veteran grabbed her throat and choked her; and even after the separation, the Veteran continued to make life extremely difficult and stressful for her. The law clearly requires that a surviving spouse be married to the Veteran at the time of his 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. Although there are exceptions to the requirement that an appellant has lived continuously with a Veteran from the time of the marriage to the time of that Veteran’s death, the exceptions only apply in instances where a Veteran and an appellant were still legally married at the time of the Veteran’s death. See 38 C.F.R. § 3.53 (2017). There is no exception to the requirement that an appellant has been married to a Veteran at the time of the Veteran’s death in order to be considered a surviving spouse. Unfortunately, the exception cited by the appellant applies only to couples who are separated and therefore do not cohabitate. 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, not separated. This 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 can 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). Here, 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, held themselves out as husband and wife. As such, there is no legal way to recognize the appellant as having contracted a common law marriage in the state of Texas at the time of the Veteran’s death. In this regard, the evidence does not show and the appellant does not allege that she and the Veteran agreed to enter a marital relationship and cohabitated after their divorce. There is no evidence to support a finding that the appellant and the Veteran held themselves out to the public as being married after the 1987 divorce or at the time of his death. There is no legal provision under which the appellant may be recognized as a spouse for VA purposes. To the extent that the appellant’s argument essentially constitutes a theory of equitable relief, the Board is without authority to grant it on an equitable basis; and instead is constrained to follow the specific provisions of law. See 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Although the Board is sympathetic to the appellant’s claim, it is the law, and not the facts, that 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. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary C. Suffoletta