Citation Nr: 19153643 Decision Date: 07/11/19 Archive Date: 07/10/19 DOCKET NO. 18-41 401 DATE: July 11, 2019 ORDER Recognition as the surviving spouse of the Veteran for the purpose of establishing basic eligibility for Dependency and Indemnity Compensation (DIC) and accrued benefits is denied. FINDINGS OF FACT 1. The Appellant was married to the Veteran from September 1969 until his death in August 1994. 2. The Appellant remarried in March 1998 at age 48 and remains married. 2. The Appellant filed a claim for DIC and accrued benefits in February 2018. CONCLUSION OF LAW The criteria for entitlement to recognition of the appellant as the surviving spouse of the Veteran for purposes of entitlement to DIC and accrued benefits are not met. 38 U.S.C. §§ 101, 103, 1102, 5110; 5124; 38 C.F.R. §§ 3.1, 3.5, 3.50, 3.52, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the Army from April 1968 to April 1970. He died in August 1994, and the Appellant was his surviving spouse at the time of his death. The Appellant subsequently remarried in March 1998. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant seeks recognition as the surviving spouse of the deceased Veteran for purposes of receiving VA benefits. When a Veteran dies, his surviving spouse may be eligible to receive certain benefits, to include DIC and accrued benefits. 38 U.S.C. § 1310; 38 C.F.R. § 3.5; 3.1000. The term “surviving spouse” means a person (1) whose marriage to the Veteran was valid under the law of the place of residence at the time of the marriage or when the right to benefits accrued; (2) who was the spouse of a 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 (i.e. continuous cohabitation); (4) and 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 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). On December 16, 2003, Congress amended Title 38 of the United States Code to authorize DIC benefits for surviving spouses even if they remarried, provided that the remarriage occurred after the surviving spouse attained the age of 57. Veterans Benefit Act of 2003, Pub. L. No. 108-183, § 101, 117 Stat. 2651, 2652-53 (2003) (codified at 38 U.S.C. § 103 (d)(2)(B)); see 38 C.F.R. § 3.55(a)(10)). However, if such a surviving spouse remarried prior to December 16, 2003, the claimant will only be eligible for DIC compensation if the DIC application was received prior to December 16, 2004. 38 C.F.R. § 3.55(a)(10)(ii). Here, the Appellant filed her application for DIC and accrued benefits in February 2018. On the February 2018 application for DIC and accrued benefits, the Appellant acknowledges that she remarried in March 1998 and she remains married. Based on her date of birth and date of marriage listed in the February 2018 application for DIC and accrued benefits, she was 48 years old at the time of her remarriage. Accordingly, the Appellant does not meet the statutory requirements to be considered a “surviving spouse” or the limited exception applicable to surviving spouses who remarry after the age of 57, and the claim must be denied as a matter of law. 38 C.F.R. § 3.55; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Samuelson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.