Citation Nr: 19106958 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 16-32 066 DATE: January 29, 2019 REMANDED Entitlement to recognition as the Veteran’s surviving spouse for the purpose of establishing eligibility for Department of Veterans Affairs death benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1941 to January 1946. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran died in January 2013. The Appellant is seeking to be recognized as the Veteran’s surviving spouse. 1. Entitlement to recognition as the Veteran’s surviving spouse for the purpose of establishing eligibility for Department of Veterans Affairs death benefits is remanded. The Appellant asserts that she should be considered the Veteran’s surviving spouse and is thus entitled to his pension. VA death benefits may be paid to a surviving spouse who was married to the Veteran: (1) one year or more prior to the Veteran’s death, or (2) 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 of the opposite sex 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. § 3.53. The Appellant maintains that she has been married to the Veteran for eighteen years and loved him for ten years before that. See August 2015 Form 9. The Veteran’s death certificate and VA form 21-526 reflects that the Veteran has never been married. See May 2010 Veteran Application for Compensation and Pension; January 2013 Death Certificate. The RO previously denied this claim in April 2014, reasoning that the Appellant was divorced from the Veteran at his time of death. See April 2014 Notification Letter. Further, the Appellant was not listed as being the “informant” as to the death of the Veteran; the Veteran’s daughter was the informant. See January 2013 Death Certificate. Therefore, prior to any determination on the merits of the claim, the Board notes that it is not clear whether the Appellant has proper legal standing in the matter on appeal. There is no credible evidence of record demonstrating that she is the Veteran’s surviving spouse for VA purposes. The evidence of record does not include any marriage certificate or divorce decree. See 38 U.S.C. § 101 (3); 38 C.F.R. §§ 3.1 (j), 3.50, 3.54, 3.55. Therefore, the Board finds that a remand is necessary to address the issue of whether the Appellant may be recognized as the Veteran’s surviving spouse. Specifically, on remand, the AOJ should determine whether the Veteran divorced the Appellant during his lifetime. The matter is REMANDED for the following action: 1. Make arrangements to obtain the Veteran’s DD-214. 2. The RO should identify the documentation that it contends shows that the Veteran and the Appellant were divorced at the time of his death. The RO should also take all appropriate steps to secure official documentation of their legal relationship, including marriage certificate and, if applicable, divorce decree. 3. The Appellate should be given another opportunity to submit all documentation in her possession which supports her contention that she and the Veteran were married at the time of his death. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel