Citation Nr: 19123767 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 16-35 563A DATE: March 29, 2019 ORDER Entitlement to Department of Veterans Affairs (VA) death pension benefits is denied. FINDINGS OF FACT 1. The Appellant and the Veteran were married in October 1977 and were still married at the time of the Veteran’s death in September 1988. 2. The Appellant remarried in January 1997 to C.T, who died in September 2015. CONCLUSION OF LAW The requirements for basic eligibility for VA death pension benefits as the remarried surviving spouse of the Veteran have not been met. Veterans Benefit Act of 2003, Pub. L. No. 108-183, 117 Stat. 2651; 38 U.S.C. §§ 103, 1310, 1311; 38 C.F.R. §§ 3.1, 3.50, 3.55. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant and the Veteran were married in October 1977. They were still married at the time of the Veteran’s death in September 1988. Thereafter, the Appellant remarried in January 1997 to C.T., who died in September 2015. The Appellant has filed a claim for VA death pension benefits. A surviving spouse is defined as (1) a person in a recognized marriage for VA purposes; (2) who was the spouse of the Veteran at the time of the Veteran’s death; (3) who lived with the Veteran continuously from the date of marriage to the date of the Veteran’s death except, as provided in 38 C.F.R. § 3.53 (a), where there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse; and (4) who, 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 of the opposite sex 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. § 3.50 (b). 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. One claiming to be the spouse of a veteran has the burden to come forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The threshold question that must be addressed in any claim for VA benefits is whether the person seeking the benefit is a proper claimant for the benefit sought. If the Appellant is not established as a proper claimant, the claim can proceed no further. The Appellant has the burden to establish her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). Since a surviving spouse is defined by law as a person who has not remarried, the Appellant’s remarriage bars her from eligibility for status as the Veteran’s surviving spouse. 38 U.S.C. § 101 (3); 38 C.F.R. § 3.50 (b)(2). Thus, under the general definition of a surviving spouse, once the Appellant remarried, she no longer had the status of a surviving spouse of the Veteran for purposes of VA benefits. However, although remarriage is generally a bar to eligibility for status as a surviving spouse, there are ten exceptions to that general rule. 38 U.S.C. §§ 103 (d), 1311(e); 38 C.F.R. §§ 3.55 (a). There are only two exceptions that apply to VA death pension benefits. These exceptions are pursuant to legislation which was enacted on June 9, 1998, which amended the law governing the reinstatement of DIC benefits. Transportation Equity Act for the 21st Century, Pub. L. No. 105-178, § 8207, 112 Stat. 107, 495 (1998); 38 U.S.C. § 1311 (e). That legislation removed a prior bar to reinstatement under circumstances where the surviving spouse of a veteran remarried, and the remarriage was later terminated. The issue on appeal is therefore whether the Appellant qualifies for either of the two applicable exceptions set forth in 38 C.F.R. § 3.55. Under 38 C.F.R. § 3.55 (a)(1), remarriage of a surviving spouse shall not bar the furnishing of benefits to such surviving spouse if the marriage was void or annulled. 38 C.F.R. § 3.55 (a)(1). This exception does not apply because the Appellant’s remarriage after the Veteran’s death was not voided or annulled, but rather was terminated by death. The second exception under 38 C.F.R. § 3.55 (a)(2) allows for a remarried appellant to be recognized as the Veteran’s surviving spouse if the subsequent marriage (or conduct construed as subsequent marriage) was terminated on or after January 1, 1971, but prior to November 1, 1990. The Appellant marriage to C.T. was terminated in September 2015. Accordingly, as the Appellant’s remarriage was not terminated prior to November 1, 1990, this exception is inapplicable to the Appellant. Consequently, recognition of the Appellant as the Veteran’s surviving spouse is precluded by law. Therefore, her claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Further, on or after October 1, 1998, remarriage of a surviving spouse terminated by death, divorce, or annulment, will not bar the furnishing of dependency and indemnity compensation (DIC), unless the Secretary determines that the divorce or annulment was secured through fraud or annulment. See 38 C.F.R. § 3.55 (a)(3). Similarly, from October 1, 1998, the fact that a surviving spouse has lived with another person and held himself or herself out openly to the public as the spouse of the other person will not bar the furnishing of DIC benefits, unless the Secretary determines that the divorce or annulment was secured through fraud or annulment See 38 C.F.R. § 3.55 (a)(3). It is noted, however, that these provisions apply only to DIC benefits pursuant to 38 U.S.C. §§ 1310 and 1318. The regulations do not otherwise provide a similar exception for death pension benefits. (Continued on the next page)   The Board does not dispute the fact that the Appellant was married to the Veteran at the time of his death. Nevertheless, the fact remains that the Appellant does not satisfy the very specific legal requirements for recognition as the Veteran’s “surviving spouse” for the purposes of entitlement to VA death benefits. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Connolly, Counsel