Citation Nr: 1817672 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 14-34 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether the appellant can be recognized as the Veteran's surviving spouse, for purposes of entitlement to DIC benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING The appellant ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1967 to June 1969. The Veteran passed away in August 2011. The appellant claims to be his surviving spouse. This matter came before the Board of Veterans Appeals (Board) on appeal from a September 2013 decision of the Department of Veterans Affairs (VA) Pension Management Center (PMC) in Milwaukee, Wisconsin. The case was subsequently transferred to the VA Regional Office (RO) in Detroit, Michigan. The appellant testified before the undersigned Veteran's Law Judge during an October 2017 Travel Board hearing. The transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran and the appellant were married for the third and final time in August 2004. 2. The Veteran and the appellant were divorced in July 2010 and did not remarry. 3. The Veteran died on August [REDACTED], 2011. CONCLUSION OF LAW The criteria for recognition as the surviving spouse of the Veteran are not met. 38 U.S.C. § 103 (2012); 38 C.F.R. §§ 3.1(j), 3.50 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. Here, VCAA notice is not required because the issue presented involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). Therefore, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). DIC benefits are paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See 38 U.S.C. § 1310. The term "surviving spouse" is defined as a person who (1) was the lawful spouse of a Veteran at the time of the Veteran's death, and (2) 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 fault of the spouse, and (3) who has not remarried. 38 C.F.R. §§ 3.1(j), 3.50. The Veteran died on August [REDACTED], 2011. The appellant contends that she is entitled to DIC benefits as the Veteran's surviving spouse on the basis of their many years of marriage and ongoing relationship. However, the undisputed facts indicate that the criteria for entitlement to recognition as the Veteran's surviving spouse are not met as the Veteran and the appellant were not married at the time of his death. The evidence of record indicates that the Veteran and the appellant were first married in December 1969. That marriage was severed by divorce in February 2002. The Veteran and the appellant re-married in July 2002, and this second marriage was severed by divorce in May 2004. A third marriage between the Veteran and the appellant took place in August 2004. In July 2010, a consent judgement of divorce was granted and signed by both parties and their counsel. The appellant does not dispute any of these facts. She testified at her October 2017 Travel Board hearing that she and the Veteran were married for 42 years and still had a relationship when he died, but that they were divorced shortly before his death. The appellant testified that the Veteran divorced her at the advice of his family after she filed for apportionment, but that the Veteran divorced her out of his own volition and desire. She also testified that he asked her to remarry him prior to his death, but that they did not remarry, and that they lived separately at the time of his death. The Board finds that the criteria for recognition as a surviving spouse are not met as the undisputed evidence indicates that the appellant and the Veteran were neither married nor cohabitating at the time of the Veteran's death. The Board sympathizes with the appellant for her loss. Regrettably, however, the law is dispositive in this case and there simply is no legal basis to recognize her as the Veteran's surviving spouse. Under the circumstances of this case, the appellant's claim for recognition as a surviving spouse must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Entitlement to recognition for the appellant as the surviving spouse of the Veteran is denied. ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs