Citation Nr: 1807675 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 13-33 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Recognition of status as surviving spouse for purposes of VA benefits, including dependency and indemnity compensation (DIC) and death pension. WITNESSES AT HEARING ON APPEAL The appellant and her daughters ATTORNEY FOR THE BOARD K. Parke, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1961 to August 1962, and from December 1962 to June 1982. The Veteran died on December [REDACTED], 2002. The appellant is the former spouse of the Veteran. This matter comes before the Board of Veterans' Appeals on appeal from a June 2012 decision by the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin. The Board denied this claim and a claim of entitlement to accrued benefits in October 2015. The appellant appealed the denial to the Court of Appeals for Veterans' Claims (the Court). In a May 2017 Memorandum Decision, the Court vacated the Board's decision with respect to the recognition of the appellant as a surviving spouse and remanded it to the Board for further analysis. The Court found that the issue of entitlement to accrued benefits had been abandoned by the appellant on appeal. In June 2015, the appellant and her daughters testified before another Veterans Law Judge. That Veterans Law Judge is not available to participate in this case. In August 2017, the Board advised the appellant of her right to testify at a new hearing. The appellant did not respond to the letter. This appeal was processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran and the appellant were married on August [REDACTED], 1958. 2. The Veteran and the appellant were divorced on January [REDACTED], 1978. 3. The Board is unable to resolve the issue of whether the appellant had notice of the divorce proceedings. Therefore, the Board will resolve the benefit of the doubt in the appellant's favor and find that she did not have notice of the divorce proceedings. CONCLUSION OF LAW The criteria for entitlement to recognition as the surviving spouse of the Veteran, for purposes of receiving VA death benefits, including DIC benefits and death pension benefits, have been met. 38 U.S.C. §§ 101(3), 103, 1310 (2012); 38 C.F.R. §§ 3.1(j), 3.5, 3.50, 3.206 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pursuant to 38 U.S.C § 1310, VA death benefits (to include DIC benefits, death pension, and accrued benefits) are paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See 38 U.S.C. § 1310; Dyment v. West, 13 Vet. App. 141 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A surviving spouse of a veteran may be eligible for DIC benefits, death pension, and/or accrued benefits, depending on whether the specific requirements for entitlement to such benefits are met. However, the initial requirement for eligibility is that the appellant is a "surviving spouse." 38 C.F.R. § 3.54(a) and (c); see also 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000. For the purpose of administering veterans' benefits, the term "surviving spouse" of a veteran means a person who was the spouse of the 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, 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 who has not remarried or (in cases not involving remarriage) has not since the death of the veteran, and after September 19, 1962, 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. For purposes of VA benefits, a marriage means a marriage valid under 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. § 103(c); 38 C.F.R. § 3.1(j). A valid marriage may be established by various types of documentary evidence together with the claimant's certified statement concerning the date, place and circumstances of dissolution of any prior marriage, provided that such facts, if they were to be corroborated by the evidence, would warrant acceptance of the marriage as valid. Where necessary to a determination because of conflicting information, proof of termination of a prior marriage will be shown by proof of death, or a certified copy or a certified abstract of final decree of divorce or annulment specifically reciting the effects of the decrees. 38 C.F.R. § 3.205(a). In the absence of conflicting information, proof of marriage which meets the requirements of 38 C.F.R. § 3.205(a) together with the claimant's certified statement concerning the date, place and circumstances of dissolution of any prior marriage may be accepted as establishing a valid marriage, provided that such facts, if they were to be corroborated by record evidence, would warrant acceptance of the marriage as valid. Where necessary to a determination because of conflicting information or protest by a party having an interest therein, proof of termination of a prior marriage will be shown by proof of death, or a certified copy or a certified abstract of final decree of divorce or annulment specifically reciting the effects of the decree. See 38 C.F.R. § 3.205(b). The validity of a divorce decree regular on its face will be questioned by VA only when such validity is put in issue by a party thereto or a person whose interest in a claim for VA benefits would be affected thereby. In cases where recognition of the decree is thus brought into question, the matter of recognition of the divorce by VA (including any question of bona fide domicile) will be determined according to the laws of the jurisdictions specified in § 3.1(j). See 38 C.F.R. § 3.206(b). In the present case, the Veteran and the appellant were married in Williamson, West Virginia in August 1958. In May 1977, the Veteran filed a petition for divorce with the Superior Court of Richmond County, Georgia, against the appellant, who was noted to be a non-resident of the State of Georgia. Because the appellant was a non-resident of Georgia, a Judge of the Superior Court signed an order dated May 10, 1977, providing for service of the appellant in that matter by publication, as provided by law. In January 1978 a Final Judgment and Decree of Total Divorce was entered by a Superior Court Judge of the Augusta Circuit, in Richmond County, Georgia. As detailed in the Court's May 2017 Memorandum Decision, the appellant asserts that she did not receive notice that the Veteran had begun divorce proceedings against her. As the Court's Memorandum Decision details, some of the forms in the Veteran's claims file regarding the notice of divorce are not properly completed and suggest that the appellant's assertion that she never received notice of the divorce proceeding that the Veteran brought against her is correct. As the Board cannot resolve the facts of this divorce from January 1978 given the findings of the Court's May 2017 Memorandum Decision, the Board will afford the appellant the benefit of the doubt and determine that she is a surviving spouse. ORDER The appellant is the Veteran's surviving spouse. ______________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs