Citation Nr: 18155634 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-16 748 DATE: December 4, 2018 ORDER Entitlement to recognition of the appellant as the Veteran’s surviving spouse for the purpose of establishing basic eligibility for VA dependency and indemnity compensation (DIC) benefits, death pension, and accrued benefits is denied. Entitlement to an increased apportionment of the Veteran’s VA benefits in excess of $94 per month is denied. FINDINGS OF FACT 1. The Veteran died in November 2011. 2. The Veteran and appellant were married in November 2004 and divorced in August 2009. 3. No attempt to marry was made by the Veteran and appellant prior to the Veteran’s death. 4. For the relevant period of the appeal from April 16, 2009, to August [redacted], 2009, the appellant demonstrated financial hardship as her expenses generally exceeded her income. 5. For the relevant period of the appeal from April 16, 2009, to August [redacted], 2009, an increased special apportionment of the Veteran’s VA benefits in excess of $94 per month would have created an undue financial hardship to the Veteran, as his expenses generally exceeded his income. CONCLUSIONS OF LAW 1. The criteria for recognition of the appellant as the Veteran’s surviving spouse for the purpose of establishing basic eligibility for VA death benefits are not met. 38 U.S.C. §§ 101 (3), 103, 5107 (West 2014); 38 C.F.R. §§ 3.1 (j), 3.50, 3.53, 3.102 (2017). 2. The criteria for an apportionment of the Veteran’s VA benefits in excess of $94 per month have not been met. 38 U.S.C. § 5307 (West 2014); 38 C.F.R. § 3.450, 3.451, 3.452, 3.453, 3.458, 3.503, 3.667 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1970 to May 1972, and died in November 2011. The appellant is the Veteran’s ex-wife, who is seeking recognition as his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2010 and February 2012 decisions by the Department of Veterans Affairs (VA) Regional Offices (ROs) located in Louisville, Kentucky and St. Paul, Minnesota, respectively. 1. DIC The appellant is seeking recognition as the Veteran’s surviving spouse for the purpose of establishing basic eligibility for VA death benefits. Only eligible applicants are entitled to VA benefits. A surviving spouse may qualify for DIC benefits if the marriage to the veteran occurred before or during his service or, if married to him after his separation from service, (1) before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated, or (2) for one year or more, or (3) 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; 38 C.F.R. § 3.54. The term “surviving spouse,” except as provided in 38 C.F.R. § 3.52, means a person whose marriage to the 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. 38 C.F.R. § 3.50(b). Additionally, the surviving spouse of a veteran must have lived with the veteran continuously from the date of marriage to the date of the veteran’s death except where there was a separation that was due to the misconduct of, or procured by, the veteran without the fault of the spouse in the case of temporary separations. 38 C.F.R. § 3.50(b)(1). Marriage means a marriage valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. § 3.1(j). An attempted marriage found to be invalid due to legal impediment will be deemed valid under certain exceptions. 38 C.F.R. § 3.52. In this case, the Veteran and appellant were married in November 2004 and divorced in August 2009. No attempt to remarry was made by the Veteran and appellant prior to the Veteran’s death in November 2011. On her VA Form 21-534, which was received by VA in January 2012, the appellant noted that she was married to the Veteran in November 2005, and that their marriage ended in November 2011 when the Veteran died. See also March 2016 VA Form 9. However, the Board finds that her assertions are not credible, because they are contradicted and outweighed by official court documents showing that she was married to the Veteran in November 2004, and that the appellant and Veteran were divorced in August 2009, prior to the Veteran’s death in November 2011. See November 2004 marriage license; August 2009 final decree of dissolution of marriage. The appellant does not allege, and the evidence does not otherwise show, that she and the Veteran attempted to remarry after the August 2009 divorce and prior to the Veteran’s death in November 2011. Based on the foregoing, the Board finds that the appellant is not the surviving spouse of the Veteran, as they had divorced in August 2009 and had not remarried or attempted to remarry at the time of the Veteran’s death in November 2011. Accordingly, the appellant does not qualify as a surviving spouse for the purpose of establishing basic eligibility for VA DIC benefits. As the disposition of this issue is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. Mason v. Principi, 16 Vet. App. 129, 131-132 (2002); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). 2. Apportionment of the Veteran’s VA Benefits The appellant seeks an increase in the amount of the apportionment of the Veteran’s VA benefits in excess of $94 per month. The record reflects that the appellant and the deceased were separated prior to their divorce in August 2009. During their separation, the apppellant was in receipt of a special apportionment of the Veteran’s VA benefits, effective December 1, 2005. Under this type of apportionment, without regard to any other provision regarding apportionment, where hardship is shown to exist, compensation may be specially apportioned between the Veteran and his dependents on the basis of the facts of the individual case as long as it does not cause undue hardship to the other persons in interest. In determining the basis for special apportionment, consideration is to be given to such factors as the amount of VA benefits payable, other income and resources of the Veteran and those dependents in whose behalf the apportionment is claimed, and the special needs of the Veteran, his dependents, and the apportionment claimants. The amount apportioned should generally be consistent with the total number of dependents involved. Ordinarily, apportionment of more than 50 percent of the Veteran’s benefits would constitute undue hardship on him or her, while apportionment of less than 20 percent of his or her benefits would not provide a reasonable amount for any apportionee. 38 C.F.R. § 3.451 (2017). A veteran cannot prevail on a claim of hardship when he or she is receiving additional benefit for a dependent and the apportioned amount is no more than that additional benefits. See Hall v. Brown, 5 Vet. App. 294, 295 (1993). The “benefit-of-the-doubt rule” rule does not apply in apportionment cases because it is impossible to give the benefit of the doubt to a veteran and a claimant simultaneously. Elias v. Brown, 10 Vet. App. 259 (1997). By way of history, in a June 2006 decision, the RO granted a special apportionment of the Veteran’s VA benefits in the amount of $94 per month to the appellant, effective December 1, 2005. In July 2006, the appellant filed a notice of the disagreement (NOD) with the June 2006 decision and requested a higher apportionment amount. An August 2006 statement of the case (SOC) denied an apportionment in excess of $94 per month. In a September 2006 VA Form 9, the appellant wrote: “I don’t want my husband’s money. I want to be his guardian.” Accordingly, the Board finds that the appellant withdrew the appeal for a higher apportionment amount. See 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.204 (2017). On April 16, 2009, the appellant informed VA that she did not withdraw the appeal and requested a reopening of the claim for an increased apportionment amount. See April 2009 VA Form 119. As noted above, the appeal for a higher apportionment amount was withdrawn by her unambiguous statement that she did not want her husband’s money, but that she was only seeking to be his guardian. Accordingly, the appellant’s April 16, 2009, statement to VA constitutes a new claim for an increased apportionment amount in excess of $94 per month. As such, the date of the claim for an increased apportionment is April 16, 2009. The record reflects that the Veteran and appellant were divorced on August [redacted], 2009. Upon a divorce from a veteran, the ex-spouse loses status as a veteran’s spouse, including any potential entitlement to an apportionment of VA disability compensation, effective from the date of the divorce. See 38 U.S.C. § 101(31) (West 2014); 38 C.F.R. §§ 3.1(j), 3.50 (2017); Marrero v. Gober, 14 Vet. App. 80, 82 (2000). A divorce severs the dependent relationship. Accordingly, in this case, the relevant appeal period is from April 16, 2009 (date of claim) to August [redacted], 2009 (date of divorce). For the reasons set forth below, the Board finds that an increased apportionment of the Veteran’s VA benefits in excess of $94 per month, for the entire period of the appeal from April 16, 2009, to August [redacted], 2009, is not warranted. The record reflects that during this period, the Veteran was in receipt of a 100 percent disability rating for his service-connected psychiatric disability. The amount of a special apportionment is determined based on an assessment of hardship. On her August 2009 VA Form 21-0788, the appellant reported total monthly income of $694 and total monthly expenses of $1,110. She also reported that she had no net worth, to include from bank accounts, retirement accounts, stocks, or other property. As such, the appellant’s monthly expenses exceeded her income by approximately $416. Accordingly, the appellant has demonstrated financial hardship. A September 2009 VA Form 21-0788 shows that the Veteran reported total monthly income of $2,740, and total monthly expenses, to include a deduction of the apportioned VA benefits to the appellant, of $2,781. The Veteran also reported that he had no net worth, to include from bank accounts, retirement accounts, stocks, or other property. As such, the Veteran’s monthly expenses exceeded his income by approximately $41. Based on the foregoing, the Board finds that, while the appellant demonstrated financial hardship, the Veteran also demonstrated undue financial hardship if an increased special apportionment is granted. In this regard, granting a higher special apportionment of the Veteran’s VA benefits would have created an undue hardship to the Veteran, as his expenses exceeded his income during the relevant period of the appeal from April 16, 2009, to August [redacted], 2009. Accordingly, because a higher special apportionment in this case would have caused an undue financial hardship to the Veteran, the claim must therefore be denied. See 38 C.F.R. § 3.451. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Ragheb, Counsel