Citation Nr: 18160177 Decision Date: 12/27/18 Archive Date: 12/26/18 DOCKET NO. 17-38 984 DATE: December 27, 2018 ORDER Recognition as the Veteran's surviving spouse for purposes of entitlement to survivor benefits is denied. FINDING OF FACT The appellant’s petition for divorce from the Veteran was granted in April 1976; they did not remarry thereafter. CONCLUSION OF LAW The criteria for recognition as the Veteran’s surviving spouse for purposes of entitlement to survivor benefits have not been met. 38 U.S.C. §§ 1121, 1310, 1541, 5107; 38 C.F.R. §§ 3.1, 3.50, 3.54, 3.102, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1964 to August 1968. The Veteran died in March 2009. The appellant and the Veteran were married from 1970 to 1976; she seeks recognition as his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 decision letter issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in St. Paul, Minnesota. In September 2018, the appellant testified before the undersigned Veterans Law Judge at a hearing held at the central office in Washington, DC. A transcript of that hearing is of record. 1. Recognition as the Veteran's surviving spouse for purposes of entitlement to survivor benefits The appellant seeks recognition as the Veteran’s surviving spouse for purposes of entitlement to VA survivor benefits. When a veteran dies, his or her surviving spouse may be eligible to receive certain VA survivor benefits to include dependency and indemnity compensation (DIC) and survivor pension benefits. See 38 U.S.C. §§ 1121, 1310, 1541; 38 C.F.R. § 3.50. A “surviving spouse” is defined as a person whose marriage to the veteran was 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; and (1) who was the spouse of the veteran at the time of the veteran’s death; (2) 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 the fault of the spouse; and (3) has not remarried or has not since the death of the Veteran and after September 19, 1962, lived with another person of the opposite sex and held himself out or herself out openly to the public to be the spouse of such other person. 38 C.F.R. §§ 3.1(j), 3.50. After careful consideration, the Board finds that the claim must be denied. In the present matter, the appellant and the Veteran married in 1970. Per her testimony before the undersigned, the marriage was not a happy one, and the appellant sustained multiple injuries at the hand of the Veteran. The nature of the marriage led the appellant to file for divorce. Her petition of divorce was granted in April 1976 and the marriage dissolved. The appellant has testified that neither she, nor the Veteran ever remarried, and that they remained in contact, but never resided together again. Upon his death in 2009, the Veteran’s death certificate indicated that he was divorced. The Board is certainly not unsympathetic to the appellant’s claim. She was married to the Veteran for six years and has testified that she was forced to seek a divorce by virtue of the Veteran’s abusive behavior. Unfortunately, the applicable Federal statutes and codes limit who qualifies as a surviving spouse and she does not meet the applicable criteria. In her hearing, the appellant’s attorney brought to the attention of the Board 38 C.F.R. § 3.54. That code states that a surviving spouse will be eligible for survivor pension benefits if he or she (1) was married to the veteran at least one year or more prior to the veteran’s death, or (2) for any period of time if a child was born of the marriage, or was born to them before the marriage, or (3) prior to certain delimiting dates. While it is true that the appellant was married to the Veteran for at least one year, and did have a child with the Veteran during her marriage, this statute does not eliminate the need to qualify as a “surviving spouse.” Rather, status of surviving spouse is a preliminary question. In making such a determination, the Board must apply the codes cited above which state that in order to be considered as a surviving spouse, one must have been married to the veteran at the time of his death. In this case, the appellant has admitted that she divorced the Veteran and that they never remarried. Therefore, because she was not married to the Veteran at the time of his death, she cannot be recognized as the Veteran’s surviving spouse for survivor benefits purposes. Finally, the Board does recognize the appellant’s attorney’s request that the Board find in her favor as a matter of equity. Even giving the appellant the complete benefit of the doubt, and recognizing that she was forced to seek a divorce by virtue of the Veteran’s abusive behavior, the principles of equity cannot be applied by the Board to award benefits that are not authorized by statute. McTighe v. Brown, 7 Vet. App. 29, 30 (1994). Essentially the Board is bound by the law as it is written, and cannot provide equitable relief beyond that which is allowed by statute. In this case, unless she was married to the Veteran at the time of his death, which she was not, the law is clear that she cannot be recognized as his surviving spouse. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel