Citation Nr: 19102167 Decision Date: 01/09/19 Archive Date: 01/09/19 DOCKET NO. 15-30 089 DATE: January 9, 2019 ORDER Entitlement to death pension is denied. FINDINGS OF FACT 1. The Appellant was married to the Veteran from March 1971 until his death in July 1985. 2. After the Veteran’s death, the Appellant entered into a new marriage that lasted from June 1991 until April 1998, when it was terminated by divorce rather than by annulment decree or a determination that the marriage was void. CONCLUSION OF LAW The criteria to recognize the Appellant as the surviving spouse of the Veteran for entitlement to death pension benefits have not been met. 38 U.S.C. §§ 1541, 5107 (2012); 38 C.F.R. §§ 3.3, 3.50, 3.55 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Navy from July 1944 to January 1948. He passed away in July 1985. The Appellant, who was married to the Veteran at the time of his death, claims entitlement to nonservice-connected pension benefits as his surviving spouse. This case comes on appeal of a February 2015 decision by the Agency of Original Jurisdiction (AOJ), which determined that the Appellant did not meet the criteria for recognition as a surviving spouse for death pension purposes, and consequently denied her claim. REFERRED ISSUE The Board notes that when the Appellant filed her claim in January 2015, she included a copy of VA’s letter granting burial benefits for the Veteran in 1985. This alerted the AOJ to the fact that the Veteran had a claims file that was not of record. After exhausting all efforts to find or rebuild the claims file, the AOJ issued a formal finding in May 2016 that further attempts to obtain the records would be unsuccessful. The Appellant was notified of this finding and was requested to provide any relevant documents in her possession. In the case where a claimant’s records are unavailable through no fault of their own, there is a heightened obligation for VA to assist the Appellant in the development of the claim and to provide reasons or bases for any adverse decision rendered without these records. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, this heightened obligation does not establish a heightened “benefit of the doubt” or lower the legal standard for proving a claim; rather, it increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Appellant. See Russo v. Brown, 9 Vet. App. 46 (1996); Ussery v. Brown, 8 Vet. App. 64 (1995). In light of this heightened obligation, the Board notes that, although the Appellant specifically selected “death pension” as the benefit she sought on her initial claim form, correspondence from the Appellant and her representative have made reference to the fact that the Appellant believes her late husband’s death was causally related to his active duty service. Specifically, the Appellant has alleged that the Veteran was exposed to radiation during service in Japan following World War II, and that this exposure was causally related to the leukemia that was listed as his official cause of death. A claim by a surviving spouse or child for death pension will be considered to be a claim for death compensation or dependency and indemnity compensation and accrued benefits. 38 C.F.R. § 3.152(b). Given the Appellant’s statements, the Board finds that a claim for death compensation or dependency and indemnity compensation has been raised by the record. In August 2015 correspondence, the Appellant made reference to a previously denied attempt to prove the Veteran’s death was caused by service. However, due to the incomplete claims file, it is unclear whether the Appellant ever filed a formal claim for cause of death. Any prior claims notwithstanding, the recently raised issue has not been addressed by the AOJ; therefore, the Board does not have jurisdiction over a claim for dependency and indemnity compensation. Accordingly, the Board refers the matter to the AOJ for appropriate action. Entitlement to death pension Death pension benefits are generally available for surviving spouses as a result of a Veteran’s nonservice-connected death if certain requirements are met. 38 U.S.C. § 1541(a). VA’s governing regulations define a surviving spouse as someone “who was the spouse of a Veteran at the time of the Veteran’s death, 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, except as provided in [38 C.F.R. §] 3.55, has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person…and held himself or herself out openly to the public to be the spouse of such other person.” 38 C.F.R. § 3.50. The exceptions outlined in 38 C.F.R. § 3.55 dictate, in pertinent part, that remarriage of a surviving spouse shall not bar the award of VA benefits if such a union was annulled or void. 38 C.F.R. § 3.55(a)(1). If the remarriage commenced on or after January 1, 1971, and was terminated by proceedings that began or ended prior to November 1, 1990, the remarriage shall not bar the award of VA benefits to the surviving spouse, provided that the marriage was terminated by death, or was dissolved by a court with basic authority to render divorce decrees unless the Department of Veterans Affairs determines that the divorce was secured through fraud by the surviving spouse or by collusion. 38 C.F.R. § 3.55(a)(2). Therefore, different provisions of the regulation apply depending on when the remarriage began and ended, and how it ended. The Appellant was married to the Veteran from March 1971 until his death in July 1985. Per the Appellant’s claim and subsequent statements, she entered into a new marriage that lasted from June 1991 until April 1998, when it was terminated by divorce. Because the Appellant’s remarriage terminated after November 1, 1990, remarriage bars her from the furnishing of death pension benefits as a surviving spouse unless the marriage was void or was annulled. The Appellant has not indicated that her remarriage ended in annulment, nor has she argued that the marriage was void for any reason. Instead, she has argued that, since she did not receive any benefits for the cause of the Veteran’s death, she needed to get remarried for financial and personal security. She has stated that she eventually got divorced in April 1998 due to her husband’s alcoholism. Although the Board is sympathetic to the Appellant’s claim, and recognizes the difficulties she must have faced following the Veteran’s death, the law on this matter does not offer any room for interpretation. Because of the timing of the remarriage, absent some evidence that the Appellant’s remarriage was annulled, 38 C.F.R. §§ 3.50 and 3.55 do not allow her to receive death pension benefits as a surviving spouse. Given the foregoing, this claim must be denied. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel