Citation Nr: 1816865 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 14-24 699A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to recognition as the surviving spouse of the Veteran for purposes of establishing eligibility for Department of Veterans Affairs Dependency and Indemnity Compensation (DIC) benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel INTRODUCTION The Veteran had active service from August 1968 to March 1970, and he died in August 2011. This matter is before the Board of Veterans' Appeals (Board) on appeal from February 2012 and March 2012 letter decisions of the Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The Veteran and the appellant were married from July 1988 to January 2011, at which time they divorced. 2. The Veteran and appellant remarried in July 2011. 2. The Veteran died in August 2011. 3. The Veteran and the appellant were married to each other for a total of 1 year or more. CONCLUSION OF LAW The requirements for recognition of the appellant as the surviving spouse of the Veteran have been met. 38 U.S.C. §§ 101(3), 103(b), 1102, 1304 (2012); 38 C.F.R. §§ 3.1(j), 3.50, 3.54 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board is granting, in full, the benefit sought on appeal and thus VA has no further duty to notify or assist. Surviving Spouse Requirement In September 2011, the appellant filed an Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse (VA Form 21-534) asserting entitlement to death benefits as the surviving spouse of the Veteran, who passed away in August 2011. See August 2011 Death Certificate (reflecting a death date of August 14, 2011). In February 2012 and March 2012 letter decisions, the RO notified the appellant that her claim was denied, primarily because she was not married to the Veteran for at least one year prior to his death. However, for the following reasons, the Board finds that the appellant was validly married to the Veteran at the time of his death and thus is entitled to recognition as his surviving spouse for VA death benefits purposes. Under VA law, a surviving spouse of a veteran may qualify for DIC, death compensation, death pension, and/or accrued benefits, collectively known as death benefits, provided that certain marriage date requirements are satisfied. See 38 U.S.C. §§ 101(14), 1102(a)(2), 1310, 1311, 1541; 38 C.F.R. §§ 3.4, 3.5, 3.54, 3.1000. For death pension benefits, the surviving spouse must have been married to the veteran for one year or more prior to the Veteran's death; or for any period of time if a child was born of the marriage, or was born to them before the marriage; or prior to January 1, 2001. 38 C.F.R. § 3.54(a). For DIC benefits, the surviving spouse must have been married to the veteran 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; or for one year or more; or for any period of time if a child was born of the marriage, or was born to them before the marriage. 38 C.F.R. § 3.54(c); see also 38 C.F.R. § 3.54(d) (noting that the term "child born of the marriage" means a birth on or after the date of the marriage on which the surviving spouse's entitlement is predicated and the term "born to them before the marriage" means a birth prior to the date of such marriage). A "surviving spouse" is defined 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 (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 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(b). To qualify as a surviving spouse, the claimant's marriage to the veteran must meet the requirements of either 38 C.F.R. § 3.1(j) or 38 C.F.R. § 3.52. 38 C.F.R. § 3.50(b). Under 38 C.F.R. § 3.1(j), a marriage is defined as "a marriage 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 C.F.R. § 3.1(j); see 38 U.S.C. § 103(c). Under 38 C.F.R. § 3.52, where an attempted marriage of a claimant to the veteran was invalid by reason of a legal impediment, the marriage will nevertheless be deemed valid if: (a) The marriage occurred 1 year or more before the veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage (see § 3.54(d)); and (b) the claimant entered into the marriage without knowledge of the impediment; and (c) the claimant cohabitated with the veteran continuously from the date of marriage to the date of his or her death as outlined in § 3.53; and (d) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the veteran's death. See 38 U.S.C. § 103(a). Additionally, 38 C.F.R. § 3.54(e) indicates that when there has been more than one marriage to the veteran, for periods commencing on or after January 1, 1958, where a surviving spouse has been married legally to a veteran more than once, the date of the original marriage will be used in determining whether the statutory requirement as to the date of marriage has been met. The veteran died in August 2011. At the time of his death, he was service-connected for coronary artery disease with a 60 percent rating, effective May 31, 2007. The appellant is seeking entitlement to DIC benefits pursuant to 38 U.S.C. § 1318. Review of the record shows that the appellant and the Veteran were married twice. The appellant's marriage certificate shows that the Veteran and the appellant were first married in July 1988. A divorce decree in the record showed the Veteran and appellant divorced in January 2011. A marriage certificate associated with the claims file reflects that the parties were remarried in July 2011. As noted above, the Veteran died in August 2011. The appellant's claim for DIC benefits was denied in March 2012 on the basis that the appellant and the Veteran were not married for one year immediately preceding the Veteran's death. See 38 U.S.C. § 1318(c). However, the Board finds that when 38 U.S.C. § 103(b) and 38 C.F.R. § 3.54(e) are considered, the appellant meets the definition of a surviving spouse. As noted above, 38 C.F.R. § 3.54(e) indicates that when there has been more than one marriage to the same veteran, for periods commencing on or after January 1, 1958, where a surviving spouse has been married legally to a veteran more than once, the date of the original marriage will be used in determining whether the statutory requirement as to the date of marriage has been met. When applying that provision, the appellant had been married to the Veteran for approximately 22 years in addition to another month of marriage in 2011, up to the Veteran's death. Thus, the appellant had been married to the Veteran for more than one year prior to his death. The Board acknowledges that 38 U.S.C. § 1318(c) indicates that benefits may not be paid to a surviving spouse unless the surviving spouse was married to the veteran for one year or more immediately preceding the veteran's death; however, there is no indication in § 1318 that 38 U.S.C. § 103(b) and 38 C.F.R. § 3.54(e) are not applicable to this type of claim. Thus, any doubt in this regard is resolved in the appellant's favor. Accordingly, the Board finds that the appellant may be recognized as the Veteran's surviving spouse for the purpose of DIC benefits pursuant to 38 U.S.C. § 1318, and the claim is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). (Continued on the next page) ORDER Recognition of the appellant as the surviving spouse of the Veteran for purposes of establishing eligibility for DIC benefits is granted. ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs