Citation Nr: 18160028 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 15-19 065 DATE: December 20, 2018 ORDER Entitlement to recognition as the surviving spouse of the Veteran for purposes of establishing eligibility for Department of Veterans Affairs (VA) benefits is denied. FINDINGS OF FACT 1. The Veteran and the Appellant were married in September 1961. 2. The Veteran and the Appellant divorced in May 1995. 3. The Veteran remarried prior to his death in February 2014. 4. The Appellant was not the Veteran’s spouse at the time of his death. 5. The Survivor Benefit Plan (SBP) is a Department of Defense sponsored and subsidized program; the grant or denial of benefits under the SBP is not within the jurisdiction of the VA and any claim for benefits must be pursued through the Defense Finance and Accounting Service (DFAS). CONCLUSION OF LAW The criteria are not met for the Appellant to be recognized as the Veteran’s surviving spouse for the purpose of establishing eligibility for VA death benefits. 38 U.S.C. §§ 101, 1102, 1304, 1541; 38 C.F.R. §§ 3.1(j), 3.50, 3.53, 3.54. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran retired from the U.S. Army with over 27 years of service, to include verified active duty service from October 1977 to August 1985. Among other honors he was awarded a Bronze Star Medal in recognition of his honorable service. The Veteran died in February 2014. In April 2014, the Appellant applied for death pension and accrued benefits as his surviving spouse. A “surviving spouse” is defined by VA regulation 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 has since not remarried. See 38 U.S.C. § 101(3), (31), 38 C.F.R. § 3.50(b). Here, in her April 2014 application, the Appellant indicated the Veteran had been married twice, initially to her prior to divorce in 1995, and then to another individual to whom he was married at the time of his death. His death certificate indicates this remarriage. In a statement accompanying her May 2015 Form 9, the Appellant indicated she was appealing VA’s decision regarding her claim for SBP benefits and that per her divorce agreement, the Veteran was to continue paying the premiums on a joint life insurance policy with a payment of $50,000 due should one of them die. She stated she was still married to the Veteran when he retired from the military and did not sign any waiver excluding her from the SBP. In a January 2016 supplemental statement of the case, the Regional Office (RO) explained that her claim for death benefits was denied because she was not married to the Veteran at the time of his death and that VA does not hold jurisdiction over entitlement to SBP benefits. It was explained that SBP benefits are administered by the DFAS department, which is separate from the VA. The Appellant was encouraged to contact DFAS directly to inquire about entitlement to SBP benefits based on the Veteran’s retirement from the Army. An address and phone number were provided for the Appellant’s convenience. A DD Form 2656-7 (Verification for Survivor Annity) was also provided to assist the Appellant in applying for SBP benefits with DFAS. In a February 2016 correspondence, the Appellant indicated she wished to continue her appeal. Unfortunately, the Board has no authority to grant or deny SBP benefits and the Appellant should contact DFAS to pursue that claim. Regarding entitlement to death pension benefits or accrued benefits provided by VA, there is no doubt to be resolved and the claim must be denied because the Appellant is not a proper claimant as she is not the Veteran’s surviving spouse. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel