Citation Nr: 19123794 Decision Date: 04/02/19 Archive Date: 03/29/19 DOCKET NO. 17-52 666 DATE: April 2, 2019 ORDER Entitlement to recognition of the appellant as the surviving spouse of the Veteran for the purpose of establishing eligibility for Department of Veterans Affairs (VA) death benefits is denied. FINDINGS OF FACT 1. The Veteran was discharged from service in December 1969. 2. The Veteran and the appellant were married in June 1971 and divorced in December 1978. 3. The Veteran died in November 2015. CONCLUSION OF LAW The appellant does not meet the criteria for recognition as the surviving spouse of the Veteran for VA death benefit purposes. 38 U.S.C. §§ 101(3), 103, 1102, 1304, 1311, 1541, 5107; 38 C.F.R. §§ 3.1(j), 3.50, 3.54, 3.205. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1967 to December 1969, and he died in November 2015. The appellant seeks to be recognized as his surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 Regional Office (RO) administrative determination. Legal Criteria, Factual Background, and Analysis Entitlement to recognition of the appellant as the surviving spouse of the Veteran for the purpose of establishing eligibility for VA death benefits is denied. The appellant claims that she should be considered the Veteran’s surviving spouse for VA purposes. See January 2017 VA Form 21-534EZ. She contends she is entitled to death benefits as a surviving spouse pursuant to 38 U.S.C. § 101(3) based on the theory that she separated from the Veteran “solely based on the misconduct of the veteran consisting of physical and mental abuse of my son and myself.” See October 2017 VA Form 9. The threshold question in this case is whether the appellant is a proper claimant to receive VA death benefits as the surviving spouse of the Veteran. Governing law provides that benefits may be paid to the surviving spouse of a veteran if certain requirements are met. 38 U.S.C. §§ 1102, 1304, 1310, 1311, 1541. A “surviving spouse” is defined as a person who was the spouse of a 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), 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. § 3.50. A surviving spouse of a qualified veteran is eligible to receive death benefits (i.e., DIC, compensation, accrued benefits, or pension) if the surviving spouse was married to the veteran for one year or more. 38 C.F.R. § 3.54. To qualify as a surviving spouse, the person’s marriage to the veteran must meet the requirements of either 38 C.F.R. § 3.1(j) or 38 C.F.R. § 3.52. 38 C.F.R. § 3.50(b). Under 38 C.F.R. § 3.1(j), a marriage is defined as “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. § 3.1(j); see 38 U.S.C. § 103(c). Regarding continuous cohabitation, under 38 C.F.R. § 3.53 there must be continuous cohabitation from the date of marriage to the date of death of the veteran except where the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. On review of the record the Board finds that the appellant does not qualify as the surviving spouse of the Veteran for the purpose of establishing eligibility for VA death benefits. The undisputed, and key, facts in this case are: The Veteran served on active duty from February 1967 to December 1969, when he was discharged. The Veteran and appellant were married in June 1971 and subsequently had one child together. A December 1978 local court judgment ordered and decreed “an absolute decree of divorce upon the grounds of irreconcilable differences.” Following the divorce decree, several documents of record confirm that the Veteran and appellant divorced (and were not remarried), including an October 1980 VA Form 21-526, a December 1983 VA Form 21-686c, a May 2010 VA Form 21-0516-1, and a May 2011 VA Form 21-686c. The Veteran died in November 2015. His death certificate is silent (blank) regarding a surviving spouse, as is his obituary. In January 2017, the appellant filed a claim for VA death benefits including Dependency and Indemnity Compensation, asserting that she was the surviving spouse of the Veteran; on the application, she also stated that the Veteran was married once, that their marriage ended in divorce in December 1978, and that she had not remarried since the Veteran’s death. In an October 2017 VA Form 9, the appellant wrote, “I was the sole legal wife of the now deceased veteran in which I lived with the veteran continuously from the date of our legal marriage…until legal separation [in December 1978].” She wrote, “…the separation was solely based on the misconduct of the Veteran…I also attest since our legal divorce in 1978 that I have never remarried and that I have never lived with anyone else, nor held myself publicly as such of which I understand should satisfy the requirements of definitive term ‘surviving spouse’” per 38 U.S.C. § 103(c). In a November 2017 statement, the appellant reported that she was married to the Veteran for “seven years (five years together and two years separated).” She described several instances of verbal, emotional, and physical abuse, and noted that her parents helped her move away from the Veteran in 1975. In applying the law to the facts in this case, the Board finds that the appellant does not meet a critical element for establishing entitlement to VA death benefits, because she is not shown to have been the Veteran’s spouse at the time of his death. The Veteran and appellant obtained a legal divorce in 1978, more than three decades prior to the Veteran’s death; the appellant acknowledged as much in January and October 2017 statements. Furthermore, the Veteran’s official death certificate specifically does not identify a surviving spouse. The evidence plainly shows that upon his death the Veteran left no spouse who could claim VA death benefits based on his status as a veteran. The law is unambiguous on this point. The Board acknowledges the appellant’s contention that she is entitled to death benefits as a surviving spouse pursuant to 38 U.S.C. § 101(3) based on the theory that she separated from the Veteran “solely based on the misconduct of the veteran” and that she did not remarry thereafter. However, the first prong of 38 U.S.C. § 101(3) explains that a “surviving spouse” is a person who was the spouse of a veteran at the time of the veteran’s death. The evidence clearly shows that upon his death the Veteran left no spouse who could claim VA death benefits based on his status as a veteran; the law is unambiguous on this point. [The Board observes that the language in the law the appellant cites referring to separation “solely based on the misconduct of the veteran” pertains to circumstances where there is a separation, and not where the marriage was terminated by divorce, and the claimant was no longer the Veteran’s spouse.] The Board is not unsympathetic to the appellant’s claim (and finds no reason to dispute her allegations regarding the circumstances of her divorce from the Veteran. However, she does not meet the legal criteria for recognition as the surviving spouse of the Veteran for the purpose of establishing eligibility to VA death benefits. Accordingly, her appeal in this matter must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). (Where, as here, the law is dispositive of a claim, it should be denied due to the absence of legal merit.) GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel