Citation Nr: 18158220 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 15-20 427 DATE: December 14, 2018 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) benefits is denied. Entitlement to accrued benefits is denied. Entitlement to death pension is denied. FINDINGS OF FACT 1. The Veteran married the Appellant in December 1962. 2. The Veteran and the Appellant divorced in August 1973. 3. The Veteran died in April 1979. 4. The Veteran’s death certificate lists a woman who is not the Appellant as the Veteran’s spouse. CONCLUSIONS OF LAW 1. The criteria for recognition of the Appellant as the surviving spouse of the Veteran for the purpose of entitlement to DIC have not been met. 38 U.S.C. §§ 101(3), 103, 1102, 1304, 1310, 1541, 5107(b); 38 C.F.R. §§ 3.1(j), 3.50, 3.53, 3.54, 3.102, 3.205. 2. The criteria for recognition of the Appellant as the surviving spouse of the Veteran for the purpose of entitlement to accrued benefits have not been met. 38 U.S.C. §§ 101(3), 103, 1102, 1304, 1310, 1541, 5107(b); 38 C.F.R. §§ 3.1(j), 3.50, 3.53, 3.54, 3.102, 3.205. 3. The criteria for recognition of the Appellant as the surviving spouse of the Veteran for the purpose of entitlement to death pension have not been met. 38 U.S.C. §§ 101(3), 103, 1102, 1304, 1310, 1541, 5107(b); 38 C.F.R. §§ 3.1(j), 3.50, 3.53, 3.54, 3.102, 3.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1959 to April 1979. He died in April 1979 and the Appellant is claiming VA benefits under the provisions of her August 1973 divorce decree. By correspondence dated October 2017, the Appellant was informed that she was scheduled for a hearing on November 7, 2017. The Appellant did not appear and has not provide an explanation for her absence. The request for a hearing is considered withdrawn and the Board may proceed with review of the claim. 38 C.F.R. § 20.704(d). The Appellant has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to the duty to assist). 1. Entitlement to Dependency and Indemnity Compensation (DIC) benefits 2. Entitlement to accrued benefits 3. Entitlement to death pension The Appellant argues that she is entitled to DIC benefits, accrued benefits, and death pension under the provisions of her August 1973 divorce decree. See November 2017 statement; February 2015 informal conference report. Only eligible applicants are entitled to VA benefits. VA death benefits may be paid to a surviving spouse who was married to the veteran (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; (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. 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). To be recognized as a veteran’s surviving spouse for the purpose of establishing entitlement to VA death benefits, the person’s marriage to the veteran must meet the requirements of 38 C.F.R. § 3.1(j) and be the spouse of the veteran at the time of the veteran’s death. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b)(1). The surviving spouse must also have lived with the veteran continuously from the date of the marriage to the date of the veteran’s death, except where the separation was due to the misconduct of, or procured by, the veteran without the fault of the spouse; and the claimant cannot have remarried since the death of the veteran and after September 19, 1962, or lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.53, 3.55. As these criteria are conjunctive, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision means that all of the conditions listed in the provision must be met). Though not specifically argued by the Appellant, the Board first notes that the Appellant does not meet the criteria to qualify as the Veteran’s surviving spouse. The Veteran and the Appellant married in December 1962 and divorced in August 1973. In October 1973, the Veteran married another woman, FPS, to whom he was married at the time of his death in April 1979. Because the Veteran and the Appellant were divorced at the time of the Veteran’s death, the Appellant cannot be recognized as the Veteran’s surviving spouse for purposes of entitlement to VA benefits. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b)(1). The Appellant’s argues that she is entitled to DIC, accrued benefits, and death benefits under two provisions of her August 1973 divorce decree. See November 2017 statement; February 2015 informal conference report. Section V of the divorce decree notes that the Appellant “has an interest in the [Veteran’s] retirement fund.” The Veteran agreed to pay Appellant a portion of this fund that is equal to one half of the amount corresponding to the 127 months of military service during which the Veteran and the Appellant were married. Section VI of the divorce agreement notes that 10 U.S.C. § 687 provides for “payment of money in lieu of retirement upon release from military service” and provides that the Appellant will be paid an appropriate proportional amount of this sum. Unfortunately, the Appellant has not met the threshold requirement of establishing standing to receive DIC benefits, accrued benefits, or death pension. The Board is bound by the applicable law and regulations as written. 38 U.S.C. § 7104(c). This includes the provisions cited above that only allow a surviving spouse, not a divorced spouse, to obtain VA benefits. As the Appellant does not qualify as a surviving spouse, the Board has no authority to award her a benefit under statutory law. See Harvey v. Brown, 6 Vet. App. 416, 424 (1994). Furthermore, the Appellant is not entitled to Title 38 benefits under Section V or Section VI of her divorce decree. Section V refers to the Veteran’s retirement fund, which is governed by the provisions of Chapter 1223 of Title 10 of the United States Code. These benefits are distinct from the Title 38 benefits that the Veteran is seeking in her appeal. The same is true for the benefits sought under 10 U.S.C. § 687, as described in Section VI of the divorce decree. Thus, any payments available under Sections V and VI of the divorce decree are distinct from the Title 38 benefits that the Appellant is seeking in the present appeal. The Board also notes that 10 U.S.C. § 687 has been repealed. Furthermore, any benefits available under Title 38 are expressly nonassignable by law. See 38 U.S.C. § 5301 (“Payment of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law . . . .”). For these reasons also, the Appellant is not entitled to Title 38 benefits under the provisions of the August 1973 divorce decree. Therefore, based on all of the foregoing, the Board finds that the criteria for establishing surviving spouse status have not been met, that the Appellant is not a proper claimant for the benefits sought, and that the provisions of the August 1973 divorce degree do not permit an award of DIC benefits, accrued benefits, or death pension benefits. Accordingly, the Appellant’s appeals must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel