Citation Nr: 18156918
Decision Date: 12/11/18	Archive Date: 12/11/18

DOCKET NO. 16-60 386
DATE:	December 11, 2018
ORDER
Recognition as the Veteran's surviving spouse for VA death benefits is denied.
FINDING OF FACT
The Veteran and appellant divorced prior to his death in December 2015.
CONCLUSION OF LAW
The criteria for recognition as the Veteran's surviving spouse for VA death benefits have not been met.  38 U.S.C. §§ 101(3), 5107; 38 C.F.R. §§ 3.1, 3.50, 3.53.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service from October 1979 to November 1992.  He passed away in December 2015.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 decision which denied recognition of the appellant as the Veteran’s surviving spouse for VA death benefit purposes.
Recognition as a surviving spouse
A “surviving spouse” is defined as a person who was the spouse of a 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, and who has not remarried or has not since the death of the veteran 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.
The requirement that there must be continuous cohabitation from the date of marriage to the date of death of the veteran will be considered as having been met when the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse.  38 C.F.R. § 3.53(a).
In this case, there is no dispute that the Veteran and appellant were divorced at the time of the Veteran’s death in December 2015.  Outpatient VA records from October 2013 show the Veteran reported being divorced.  His December 2015 death certificate also indicates he was divorced.  In a February 2016 statement, the appellant acknowledged her divorce from the Veteran, and submitted copies of court-related paperwork to that effect.
Although the appellant acknowledges she divorced the Veteran, she asserts that the divorce was due to the fault of the Veteran because of his abusive behavior stemming from a service-connected mood disorder.  She submitted copies of an April 2003 restraining order she obtained against the Veteran.
While the Board her divorce from the Veteran due to abusive behavior, the provision pertaining to whether a separation was due to the fault of a veteran, without any fault on the part of the surviving spouse, is applicable in determining whether married parties continued to cohabitate during their marriage.  See 38 C.F.R. § 3.53(a).  This regulation assumes that the parties were married and thus entitles a claimant to benefits where a separation was due to abuse, without termination of the marriage.
Here, the appellant’s divorce from the Veteran terminated the marriage, and therefore they had no valid marriage at the time of his death.  The statute provides no exception to the definition of “surviving spouse” in 38 C.F.R. § 3.50(b)(1), which requires a valid marriage at the time of the veteran’s death even in cases of abuse.  See Haynes v. McDonald, 785 F.3d 614, 616 (Fed. Cir. 2015).  While the Board is sympathetic to the appellant’s case, the applicable laws and regulations in this matter are clear.  Therefore, the Board has no alternative but to deny recognizing the appellant as the Veteran’s surviving spouse.
 
P.M. DILORENZO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Shamil Patel, Counsel