Citation Nr: 18104331
Decision Date: 05/22/18	Archive Date: 05/21/18

DOCKET NO. 14-35 719
DATE:	May 22, 2018
ORDER
Service connection for the cause of the Veteran's death is denied.
FINDING OF FACT
The appellant was not married to the Veteran for a period of one year or more, was not married to him within 15 years of his period of service, and did not have any children with him.
CONCLUSION OF LAW
The criteria for service connection for the cause of the Veteran's death have not been satisfied.  38 U.S.C. § 1310(a); 38 C.F.R. §§ 3.50, 3.54(c).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service from October 1970 to November 1973.  He passed away in May 2002.  The appellant is his surviving spouse.  The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision which denied service connection for the cause of the Veteran’s death.
This claim was previously denied in August 2002.  The appellant did not perfect an appeal of that decision and it became final.  Since that decision, the laws and regulations regarding compensation for disabilities associated with exposure to herbicide agents have been amended, and new disabilities are now presumed to be associated with such exposure.  As this liberalizing law creates a new basis of entitlement, new and material evidence is not required to reopen the appellant’s previously denied claim.  See Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993).
1. Service connection for the cause of the Veteran's death.
Dependency and indemnity (DIC) compensation for the cause of a veteran’s death is payable to a surviving spouse when a veteran dies due to a service-connected disability.  38 U.S.C. § 1310(a).
A “surviving spouse” is defined as a person who was the spouse of a veteran at the time of his death, who lived with the veteran continuously from the date of marriage to the date of his death and, except as provided in section 3.55, has not remarried or has not, since the death of the veteran, lived with another person and held herself out openly to the public to be the spouse of such other person.  See 38 C.F.R. § 3.50.  The appellant meets this definition and is considered the Veteran’s surviving spouse.
However, in order for compensation for service connection for the cause of the Veteran’s death to be paid to a surviving spouse under 38 U.S.C. § 1310(a), she must have been married to the Veteran (1) before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the Veteran’s death was incurred or aggravated, or (2) for one year or more, or (3) for any period of time if a child was born of the marriage or born to them before the marriage.  38 C.F.R. § 3.54(c).
The marriage certificate in the claims file shows the appellant and Veteran were married in April 2002, approximately one month prior to his death in May 2002.  This means they were married more than 15 years after his period of service and for less than one year total.  In addition, there is no indication that the appellant and Veteran had any children together.  The claims file contains a birth certificate for the child “J.P,” who was born in October 1999.  The appellant is listed as the child’s mother, but the Veteran is not listed as the child’s father, and there is no other evidence to suggest that the appellant and Veteran had any children together.
As a result, the appellant does not meet the criteria of 38 C.F.R. § 3.54, and she is not entitled to DIC compensation for the cause of his death.
 
JOHN Z. JONES
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Shamil Patel, Counsel