Citation Nr: 20006547 Decision Date: 01/29/20 Archive Date: 01/27/20 DOCKET NO. 18-19 983 DATE: January 29, 2020 ORDER Entitlement to survivor death benefits is denied. FINDINGS OF FACT 1. The Veteran had wartime service during the Vietnam Period of War. 2. The Veteran and the appellant married in June 1970 and divorced in September 1995. 3. The Veteran and the appellant were not married at the time of the Veteran’s death in December 2009. CONCLUSION OF LAW The criteria for status as claimant have not been met. 38 U.S.C. §§ 101(3), 1541; 38 C.F.R. §§ 3.1(j), 3.50. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1968 to May 1970. This appeal is from a June 2017 decision by the Agency of Original Jurisdiction (AOJ) that denied the application. See 06/01/2017 Notification. Entitlement to survivor death benefits Legal Requirements A surviving spouse may be eligible for death pension benefits if the Veteran had an aggregate of 90 days or more service during a period of war. 38 C.F.R. § 3.3. Applicable regulations define “surviving spouse” as a person who was the spouse of the veteran at the time of the veteran’s death; who lived with the veteran continuously from the date of marriage to the date of the veteran’s death (with some exceptions that are inapplicable here); and, who has not remarried or, 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. Discussion The Death Certificate reflects that the Veteran died in December 2009. See 01/25/2017 Death Certificate. At the time of his death he had no claims pending with VA. As noted above, the Veteran had active service during the Vietnam Era. See 08/31/1973 Certificate of Release. Nonetheless, to claim survivor death benefits, a claimant must prove eligibility for such benefits. The appellant and the Veteran married in June 1970. See 08/31/1973 Marriage Certificate. The appellant indicated on her application for VA death benefits that she and the Veteran were divorced in September 1995. See 01/25/2017 VA 21-534, P. 3. Although there is no Divorce Decree in the claims file, neither the appellant nor those who have submitted statements in her behalf has disputed the fact of the divorce. In support of her application, the appellant asserts that the Veteran drank and was abusive and unfaithful during the marriage; and, it was he who filed for divorce. She asserts further that she and the Veteran were considering reconciliation and planned to remarry at the time of his death. See 11/20/2017 Correspondence 01/02/2018 NOD; 02/26/2018 VA Form 9. Her assertion is supported by the Veteran’s sister. See 11/27/2017 Buddy/Lay statement. The evidence of record shows that the continuous habitation of the appellant and the Veteran was terminated by divorce, as opposed to a separation due to misconduct or abuse by him. See, e.g., 38 C.F.R. § 3.53. Whatever the Veteran’s conduct during the marriage to the appellant, the marriage was in fact terminated at the time of his death. The Board notes the appellant’s assertion that she and the Veteran planned to remarry. While that may have been the case, the fact of the matter is that they had not at the time of the Veteran’s death. Hence, the appellant is not the Veteran’s surviving spouse. Therefore, the claim is denied. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.