Citation Nr: 1825397 Decision Date: 04/27/18 Archive Date: 05/07/18 DOCKET NO. 14-38 389A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether the appellant can be recognized as a surviving spouse of the deceased Veteran. WITNESSES AT HEARING ON APPEAL The appellant and her sister, A. B. ATTORNEY FOR THE BOARD J. Tunis, Associate Counsel INTRODUCTION The Veteran had active service from June 1967 to July 1969. He died in July 2002. The appellant is seeking recognition as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appellant and her sister, A. B., testified before the undersigned Veterans Law Judge at a Travel Board hearing sitting at the RO in Montgomery, Alabama, in October 2015. FINDINGS OF FACT 1. The appellant and the Veteran were married in September 1969. 2. The appellant divorced the Veteran in October 1984 due to perceived abusive treatment by the Veteran. 3. The Veteran died in July 2002. CONCLUSION OF LAW The appellant may not be recognized as the surviving spouse of the Veteran for the purpose of VA death benefits. 38 U.S.C. §§ 101, 1102, 1304, 1541 (2012); 38 C.F.R. §§ 3.1, 3.50, 3.53, 3.54, 3.206 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). II. Analysis The appellant is seeking recognition as the surviving spouse of the Veteran. She maintains that, although they were divorced, her divorce from the Veteran was due to his abusive behavior. See October 2015 Travel Board hearing transcript. VA death benefits may be paid to a surviving spouse who was married to a veteran: (1) before the expiration of 15 years after the termination of the period of service in which the injury of disease causing death was incurred or aggravated, (2) one year or more prior to the Veteran's death, or (3) for any period of time if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C. §§ 1102, 1304, 1541; 38 C.F.R. § 3.54. The term "surviving spouse" 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 in the case of temporary separations) 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, 3.53. A wife is a person whose marriage to the Veteran meets the requirements of 38 C.F.R. §§ 3.1(j). 38 C.F.R. § 3.50(a). Marriage means 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). A former spouse of a deceased veteran, who was not married to the veteran at the time of his death, is not entitled to VA death benefits, notwithstanding the fact that her divorce from the veteran was based on abuse. Haynes v. McDonald, 785 F.3d 614, 616 (Fed. Cir. 2015), cert. denied, 136 S. Ct. 156 (2015). In this case, several material facts are not in dispute. First, the appellant and the Veteran were married in September 1969. Second, that the appellant divorced from the Veteran in October 1984 due to the perceived abusive behavior by the Veteran. For purposes of this appeal, the determinative fact remains that the judgment of divorce has not been set aside or vacated as of this date. Therefore, it remains in effect and is controlling in this appeal. The Veteran died in July 2002. The appellant has not remarried or held herself out as remarried since that time. In further support of her case, the appellant contends that she should be recognized as the surviving spouse because she separated from the Veteran due to his misconduct without fault on her part. Unfortunately, based on these undisputed facts, the appeal must be denied. The Board finds no basis to doubt the appellant's assertion that her divorce from the Veteran resulted from his behavior of abuse, as the Veteran and her sister, A. B., have provided credible testimony. See October 2015 Travel Board hearing transcript. However, the law is dispositive and clearly requires that she have been married to the Veteran at the time of his death to qualify as a surviving spouse. See Haynes, 785 F.3d at 616. The facts in the present case are nearly identical to those in Haynes. It was noted that there is no exception the marriage requirement indicated in the statute or regulation. Id. As such, the Board finds that the appellant may not be recognized as the Veteran's surviving spouse for the purpose of establishing entitlement to VA death benefits, and her claim is denied as a matter of law. 38 U.S.C. §§ 1102, 1304, 1541; 38 C.F.R. §§ 3.50, 3.54. The Board has given careful consideration to the appellant's testimony as to her suffering from abuse in her marriage. See October 2015 Travel Board hearing transcript. While compelling, the Board is without authority to grant the appellant's claim on such an equitable basis, and instead is constrained to implement the specific provisions of law. See 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As this is not a case where the weight of evidence is at a level of equipoise, the claim must be denied as matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Recognition of the appellant as the Veteran's surviving spouse for the purpose of establishing entitlement to VA death benefits is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs