Citation Nr: 20002650 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 16-58 370 DATE: January 14, 2020 ORDER Entitlement to recognition as the surviving spouse for VA Dependency and Indemnity Compensation (DIC) benefit purposes is denied. FINDING OF FACT Prior to the Veteran’s death in December 2002, the appellant and the Veteran were divorced in 1999. CONCLUSION OF LAW The criteria for entitlement to recognition of the appellant as the Veteran’s surviving spouse for purposes of DIC benefits have not been met. 38 U.S.C. §§ 103, 1102, 1304, 1310, 1311, 1541 (2012); 38 C.F.R. §§ 3.1 (j), 3.50, 3.52, 3.53 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the Air Force from June 1969 to April 1973. The Veteran died in December 2002. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 determination of the Department of Veteran Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In November 2019 the appellant presented testimony at a video hearing before the undersigned Veterans Law Judge (VLJ). Duties to Notify and Assists Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Recognition as the surviving spouse VA benefits may be paid to the surviving spouse of a Veteran if certain requirements are met. 38 U.S.C. §§ 1304, 1310, 1311, 1318, 1541 (2012). A surviving spouse is 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. 38 U.S.C. § 101(3) (2012); Haynes v. McDonald, 785 F.3d 614, 616 (Fed. Cir. 2015) (rejecting the argument that the married-at-the-time-of-death requirement should be excused because the divorce was precipitated by the veteran’s abusiveness); Marrero v. Gober, 14 Vet. App. 80, 82 (2000) (holding that the appellant was not the veteran’s spouse because they divorced). There are no exceptions for abuse, even if caused by a service-connected disorder. In the January 2013 notice of disagreement (NOD), the appellant stated that that she was physically and emotionally abused during her marriage to the Veteran. The appellant stated her separation from the Veteran was due to the Veteran’s misconduct and no fault of her own. The Veteran’s death certificate showed he died in December 2002. A May 1979 form indicated the Veteran and the appellant were married in March 1979. In her September 2012 application, the appellant indicated that she and the Veteran were divorced in 1999. The Veteran’s death certificate indicated that he was married to another woman at the time of death. The Board finds the appellant and Veteran’s divorce, a fact that is undisputed in this case, bars the appellant from eligibility for status as his surviving spouse. 38 U.S.C. § 101(3). A “surviving spouse” means...a person... whose marriage to the Veteran meets the requirements of § 3.1 (j) and who was the spouse of a veteran at the time of the veteran’s death”; 38 C.F.R. § 3.50(b)(2). Marriage means a marriage valid under the law. See 38 C.F.R. § 3.1 (j). Divorce is defined as a dissolution of the marriage relation between husband and wife. See Ballentine’s Law Dictionary (3rd ed. 2010). The Board recognizes that although the Veteran and the appellant were married for over 18 years, the effect of the divorce was to dissolve the marriage. Thus, the appellant no longer meets the requirements of a valid marriage. See 38 C.F.R. § 3.1 (j). The Board has considered the appellant's contentions but notes that this case does not turn on a finding of misconduct on the part of the Veteran. The provisions pertaining to whether a separation was due to the fault of the veteran, without any fault on the part of the surviving spouse, are applicable in determining whether married parties continued to cohabitate during their marriage. See 38 C.F.R. § 3.53(a). This regulation presupposes that the parties were married at the time of a veteran's death. Thus, although a separation due to abuse, without termination of the marriage may entitle a claimant to benefits, in this case, the Veteran and the appellant had divorced. A divorce terminates the marriage, and by extension, breaks the continuous cohabitation requirement. For these reasons, although the appellant's divorce may well have been precipitated, at least in part, to abuse perpetrated by the Veteran, there is no basis to award death benefits under the applicable laws and regulations. While the Board is sympathetic to the arguments presented by the appellant, the law is clear and precludes eligibility in this case. Where the law is dispositive, the claim should be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Accordingly, entitlement to recognition as the surviving spouse for VA DIC benefit purposes is denied. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bruton, Associate 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.