Citation Nr: 1813670 Decision Date: 03/06/18 Archive Date: 03/14/18 DOCKET NO. 14-28 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for the purpose of establishing entitlement to dependency and indemnity compensation (DIC) benefits. WITNESSES AT HEARING ON APPEAL The Appellant and her daughter ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1961 to September 1964 and from March 1965 to June 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) and Pension Management Center in St. Paul, Minnesota. Jurisdiction of the claims file now resides with the Seattle, Washington RO. In November 2014, the Veteran and her daughter J.W. testified at the RO before a Decision Review Officer (DRO). Thereafter, in January 2017, the Veteran and J.W. testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). Transcripts of both hearings are associated with the claims file. FINDINGS OF FACT 1. The Appellant and the Veteran divorced in December 1995. A court-ordered parenting plan indicated that abuse of children and domestic acts of violence committed by the Veteran played a role in the dissolution of the marriage. 2. Neither the Veteran nor the Appellant remarried following the December 1995 divorce. 3. The Veteran died in August 2012. CONCLUSION OF LAW The Appellant is not entitled to recognition as the Veteran's surviving spouse for the purpose of receiving DIC benefits. 38 U.S.C. §§ 101, 103 (2012); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53, 3.54, 3.102, 3.215 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant contends that she is a "surviving spouse" for the purpose of establishing entitlement to DIC benefits because her divorce was due to abuse committed by the Veteran. In the instant case, the Board finds that the Appellant is not a "surviving spouse" for the purpose of establishing entitlement to DIC benefits. In making this determination, the Board acknowledges that abuse committed by the Veteran was a cause that contributed to the dissolution of his marriage to the Appellant. The Board also acknowledges that, as the Appellant testified during the January 2017 Board hearing, (1) the Appellant filed for a dissolution of the marriage at the Veteran's request, and (2) following their divorce, it appeared that the Veteran sought assistance and attempted to make amends for the abuse he inflicted during his lifetime. However, the fundamental issue underlying the Appellant's appeal is a question of law-i.e., her attempt to be recognized as a "surviving spouse" for VA purposes. On multiple occasions, the Appellant has cited 38 C.F.R. § 3.50 in support of her appeal. Additionally, she has stated that she was recognized as a surviving spouse by the Social Security Administration (SSA). See, e.g., Hearing Tr. at 3 (Appellant statement read by J.W.). 38 U.S.C. § 101(3) defines "surviving spouse" as [A] person of the opposite sex 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 (except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse). 38 C.F.R. § 3.50(b)(1) tracks the language of 38 U.S.C. § 101(3), and provides that an individual may still be considered a "surviving spouse" for VA purposes when there is a separation which was due to the misconduct or, or procured by, the veteran without the fault of the spouse. The issue presented in the instant case was directly addressed by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Haynes v. McDonald. 785 F.3d 614 (Fed. Cir. 2015). In Haynes, the Federal Circuit affirmed a decision of the Court of Appeals for Veterans Claims (CAVC) that interpreted 38 C.F.R. § 3.50(b)(1) to require that a veteran and claimed surviving spouse be married at the time of the veteran's death. Id. at 616. The Federal Circuit stated that the CAVC did not err in holding that there was no exception to the marriage requirement when a veteran and former spouse got divorced on the basis of abuse. Id. In light of the Federal Circuit's holding in Haynes, the Board may not deem the Appellant a "surviving spouse" for VA purposes as a matter of law simply because she was not married to the Veteran at the time of his death. Haynes affirmed that separation and divorce are separate concepts under 38 C.F.R. § 3.50(b)(1). Although the Board acknowledges the evidence indicative of abuse within the marital relationship as well as the Appellant's credible testimony that she divorced the Veteran at his request, and sympathizes with her, the Board has no discretion and must deny her claim as a matter of law. Relatedly, the Board acknowledges the Appellant's testimony that she has been recognized as a surviving spouse by the SSA. However, VA is not bound by findings made by other federal agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). As such, any finding by SSA is immaterial to the instant case. ORDER Entitlement to recognition as the Veteran's surviving spouse for the purpose of DIC benefits is denied. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs