Citation Nr: 19119413 Decision Date: 03/18/19 Archive Date: 03/18/19 DOCKET NO. 16-00 103A DATE: March 18, 2019 ORDER The termination of dependency and indemnity compensation (DIC) benefits due to remarriage effective June 1, 2013 was proper. FINDING OF FACT The appellant was the surviving spouse of the Veteran at the time of his death. She remarried in June 2013 when she was 56 years old. CONCLUSION OF LAW The termination of DIC benefits due to remarriage effective June 1, 2013 was proper. See 38 U.S.C. §§ 101(14), 1310, 1311; 38 C.F.R. §§ 3.5, 3.50, 3.55 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the U.S. Air Force from November 1977 until July 1982. The Veteran died in August 2010, and the appellant was the surviving spouse of the Veteran at the time of his death. Procedurally, the appellant’s claim of entitlement to service connection for the cause of the Veteran’s death and DIC benefits was denied in a December 2010 rating decision. The appellant appealed that decision, and in May 2014 the Board remanded the appeal for further development. On remand, the claim was granted in a January 2015 rating decision, and the appellant was notified of that decision in February 2015. This matter comes to the Board of Veterans’ Appeal (Board) on appeal from an August 2015 decision of the Department of Veterans Affairs (VA) Pension Management Center that terminated the appellant’s DIC benefits effective June 1, 2013 due to her remarriage prior to the age of 57. The appellant argues, in part, that VA erred in failing to notify her that she would lose DIC benefits if she remarried prior to turning 57. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2016). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim. Id.; see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). The appellant’s claim is being denied herein as a matter of law. Because the law and not the facts are dispositive in this case, the provisions of the VCAA are not for application. More specifically, because the claim is being denied as a matter of law, no further development under the VCAA or previously existing law is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Smith v. Gober, 14 Vet. App. 227 (2000) (VCAA has no effect on appeal limited to interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive). In any event, the appellant was notified of the requirements to be considered a surviving spouse in a November 2011 statement of the case. See November 2011 statement of the case (explaining that a DIC benefits were available for a surviving spouse whose marriage to the Veteran met the requirements of 38 C.F.R. § 3.50(b)). The appellant also offered testimony before the undersigned Veterans Law Judge at a Board hearing in October 2018. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2018); Bryant v. Shinseki, 23 Vet. App. 488 (2010). In October 2018, the appellant filed a claim for reinstatement of DIC benefits that was denied in a December 2018 VA administrative decision. The appellant has a year from the date of the December 2018 decision to submit a notice of disagreement on the appropriate form. The appellant is reminded that effective March 24, 2015, for every case in which the agency of original jurisdiction (AOJ) provides, in connection with its decision, a form for the purpose of initiating an appeal, a notice of disagreement consists of a completed and timely submitted copy of that form. Moreover, VA will not accept as a NOD an expression of disagreement with an adjudicative determination by the AOJ that is submitted in any other format, including on a different VA Form. See 38 C.F.R. § 20.201 (a)(1); see also 79 Fed. Reg. 57698 (explaining that the revised regulation requiring a NOD be on a standardized form is effective March 24, 2015). The issue of entitlement to reinstatement of DIC benefits is not addressed herein as it is not ripe for appellate review. Whether the termination of DIC benefits due to remarriage effective June 1, 2013 was proper DIC is a monthly payment made by VA to a surviving spouse, child, or parent due to a service-connected cause of death. See 38 U.S.C. §§ 101(14), 1310, 1311; 38 C.F.R. § 3.5. Generally, a surviving spouse means a person who was legally married to a veteran at the time of his or her death, and has not since remarried. See 38 U.S.C. §101(3); 38 C.F.R. § 3.50 (b). On or after October 1, 1998, the remarriage of a surviving spouse terminated by death, divorce, or annulment, will not bar the furnishing of DIC, unless the Secretary determines that the divorce or annulment was secured through fraud or collusion. 38 C.F.R. § 3.55 (2018). Effective January 1, 2004, remarriage after age 57 of the surviving spouse of a veteran shall not bar the furnishing of specified benefits, such as DIC, to such person as the surviving spouse of a veteran. 38 U.S.C. § 103 (d)(2)(B); 38 C.F.R. § 3.55 (a)(10). The appellant reports her date of birth is September 15, 1956. See September 2010 Application for DIC Benefits. The appellant and the Veteran were married in August 1989. See Marriage Certificate received November 1996. The Veteran died in August 2010, and the appellant was his surviving spouse at the time of his death. See id. Entitlement to service connection for the cause of the Veteran’s death was granted in a January 2015 rating decision. The appellant was notified of the decision in February 2015, and benefit payments were granted from September 2010. In February 2015, the appellant responded that she had remarried on June 15, 2013. In July 2015, the appellant provided the name and social security information of her hew spouse, GH. The facts are not in dispute that the appellant was 56 old at the time of her remarriage to GH. Therefore, her remarriage is not subject to the exception for surviving spouses of veterans who remarry after age 57. Though the appellant and GH no longer cohabitate, the facts are also not in dispute that they remain married. See October 2018 hearing testimony. Her remarriage is thus a bar to recognition as the Veteran’s spouse for purposes of eligibility to DIC, and the termination of DIC benefits effective June 1, 2013 was proper. Unfortunately, the Board has no option but to decide this case in accordance with the applicable law, and the appellant’s claim must be denied. While the Board is sympathetic to the circumstances of the appellant’s case, the Board may not grant a benefit that the appellant is not eligible to receive under statutory law. See Davenport v. Principi, 16 Vet. App. 522 (2002); Harvey v. Brown, 6 Vet. App. 416 1994). In other words, Congress enacts federal laws authorizing monetary benefits, and, unless an individual meets all of the requirements of a particular law, he or she is not entitled to the benefit and the benefit cannot be awarded, regardless of the circumstances. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REMANDED Entitlement to a waiver of indebtedness for overpayment of DIC benefits is remanded. REASONS FOR REMAND 1. Entitlement to a waiver of indebtedness for overpayment of DIC benefits is remanded. This issue is remanded for issuance of a statement of the case. In a February 2016 administrative decision, VA denied the appellant’s request for a waiver of indebtedness. In February 2016 correspondence, the appellant expressed disagreement with that decision and submitted additional evidence. The February 2016 correspondence is interpreted by the Board as a valid notice of disagreement to the February 2016 administrative decision. Therefore, on remand a statement of the case should be issued, and the appellant should be afforded an opportunity to submit a substantive appeal as to those issues. See Manlincon v. West, 12 Vet. App 238, 240-241 (1999). The matter is REMANDED for the following action: 1. Issue a statement of the case addressing the issues of entitlement to a waiver of indebtedness. Thereafter, the appellant should be given an opportunity to perfect an appeal by submitting a timely substantive appeal. The AOJ should advise the appellant that the matter will not be returned to the Board for appellate consideration of the issue following the issuance of the statement of the case unless she perfects her appeal K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Smith, Associate Counsel