Citation Nr: 19114751 Decision Date: 03/01/19 Archive Date: 02/28/19 DOCKET NO. 16-61 601 DATE: March 1, 2019 ORDER Entitlement to recognition as the Veteran’s surviving spouse for the purpose of entitlement to VA Dependency and Indemnity Compensation (DIC) benefits based on service connection for the cause of the Veteran’s death is denied. Entitlement to recognition as the Veteran's surviving spouse for the purpose of entitlement to VA death pension benefits. Entitlement to accrued benefits is granted. FINDINGS OF FACT 1. The Appellant and the Veteran were not in continuous cohabitation at the time of the Veteran’s death. 2. The Appellant was the Veteran’s spouse at the time of the Veteran’s death. CONCLUSIONS OF LAW 1. The criteria for recognition of the appellant as the Veteran’s surviving spouse for the purpose of service connection for the Veteran’s cause of death have not been met. 38 U.S.C. §§ 103, 1102, 1304, 1310, 1311, 1541; 38 C.F.R. §§ 3.1 (j), 3.50, 3.52, 3.53, 3.54, 3.205. 2. The criteria for recognition of the appellant as the Veteran’s surviving spouse for the purpose of VA death pension benefits have not been met. 38 U.S.C. §§ 103, 1102, 1304, 1310, 1311, 1541; 38 C.F.R. §§ 3.1 (j), 3.50, 3.52, 3.53, 3.54, 3.205. 3. The criteria for eligibility for entitlement to accrued benefits have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107, 5121; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from July 1964 to March 1966. The Veteran died in November 2013. The Appellant is the Veteran’s wife. These matters come to the Board on appeal from an October 2014 Regional Office decision. 1. and 2. Entitlement to recognition as the Veteran’s surviving spouse for the purposes of service connection for the Veteran’s cause of death and death pension benefits is denied. The Appellant asserts that the Veteran’s cause of death should be service-connected and that she is entitled to death pension benefits. The threshold question, however, is whether the Appellant is entitled to receive such benefits. Dependency and Indemnity Compensation (DIC) benefits and death pension benefits may be paid to the surviving spouse of a Veteran in certain circumstances. 38 U.S.C. §§ 1310, 1541(a) (West 2014). Except as provided in 38 C.F.R. § 3.52, the term “surviving spouse” means a person of the opposite sex whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the Veteran at the time of the Veteran’s death and: (1) 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 (2) except as provided in § 3.55, has not remarried or has not since the death of the Veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50(b). The Appellant provided a marriage certificate, and indicated that she and the Veteran began living together in 1992. However, by the Appellant’s own assertion, she and the Veteran were separated from July 2006 until the Veteran’s death. She indicated that the reason for separation was drinking and drug use. The Appellant does not ever indicate who was drinking and using drugs, or who was at fault for the separation. Medical records from 2007 indicate that the Veteran reported living with another woman, and that he did not have any contact with his ex-wives. The record shows that he considered the Appellant to be his “ex-wife”, although there is no record of a divorce. The medical records also show that the Veteran complained of stress in 2007, and that drug and alcohol abuse of his ex-wife appeared to be contributing factors. The same treatment record also indicated that the Veteran did not have a history of substance abuse. While the Appellant and witnesses submitted statements indicating that the she and the Veteran were still married, the record does not contain an assertion that the Appellant and the Veteran lived together until the Veteran’s death, and importantly, the evidence does not indicate that the cause of the separation was due to the misconduct of the Veteran without the fault of the Appellant. As such, the preponderance of the evidence of record is against the Appellant’s claim that she is entitled to recognition as the surviving spouse of the Veteran for the purpose of receiving VA death benefits and DIC benefits for the Veteran’s cause of death. 38 U.S.C. § 103; 38 C.F.R. §§ 3.1 (j), 3.50, 3.52, 3.54. Therefore, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 2. Entitlement to accrued benefits is granted. The record reflects that the Appellant was issued a month of death payment of $1,038.00 in December 2013. VA subsequently found that the Appellant issued the payment in error, and demanded the funds be returned because the Veteran’s death certificate stated that the Veteran was divorced, and the Appellant stated that she did not live with the Veteran continuously. The Appellant’s notice of disagreement was in response to the debt letter from the VA. The Appellant disputes that she was not entitled to the $1,038.00 in accrued benefits. Accrued benefits include those a veteran was entitled to at the time of death under an existing rating or based on evidence in the file at the date of death. See 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). Upon the death of the veteran, any accrued benefits are payable to his spouse, or to others if he or she is not alive. 38 U.S.C. § 5121(a)(2); 38 C.F.R. § 3.1000(a)(1). Specifically, a spouse for the purposes of accrued benefits claims is denied as a surviving spouse of the Veteran whose marriage meets the requirements of 38 C.F.R. § 3.1(j) or 38 C.F.R. § 3.52; importantly, the applicable regulation notes that when the marriage meets the requirements of 38 C.F.R. § 3.1(j), “date of marriage and continuous cohabitation are not factors” for consideration. 38 C.F.R. § 3.1000(d)(1). Under 38 C.F.R. § 3.1(j), 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. § 3.52 on the other hand, addresses situations where marriages were not deemed valid for the reasons of legal impediment. Thus, unlike the statutes applicable to cause of death and death pension, entitlement to accrued benefits are payable to a “spouse,” which is not necessarily a “surviving spouse.” The term “spouse” is defined in the relevant statutes as “a person of the opposite sex who is a wife or husband.” Thus, as the Appellant is not required to be a “surviving spouse” to receive accrued benefits, there is no requirement of cohabitation. As stated above, the Appellant contends that although the Veteran’s death certificate listed the Veteran as divorced, there were no legal divorce proceedings. The Appellant’s contentions are supported by statements from her sister and son. Further, April 2007 records indicate the Veteran has been separated from his wife for 10 years. The Board finds that the record is at least in equipoise as to whether the Veteran and the Appellant were married at the time of death. As such, in giving the benefit of the doubt to the Appellant, the Board finds that entitlement to accrued benefits in the amount of $1,038.00 is warranted.] Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Baker, Associate Counsel