Citation Nr: 20007477 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 16-62 998 DATE: January 29, 2020 ORDER Entitlement to recognition as the Veteran’s surviving spouse for the purpose of establishing entitlement to Department of Veterans Affairs (VA) death benefits is denied. FINDINGS OF FACT 1. The appellant and the Veteran divorced in December 1986. 2. The appellant is not the Veteran’s surviving spouse. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran’s surviving spouse for VA death benefits purposes are not met. 38 U.S.C. §§ 101(3), 5107; 38 C.F.R. §§ 3.1(j), 3.50, 3.102. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1952 to December 1954. He served honorably in the U.S. Army. The Board appreciates the Veteran’s service to our country. The appellant testified before the undersigned at a Board videoconference hearing in January 2020. Entitlement to recognition as the Veteran’s surviving spouse for the purpose of establishing entitlement to VA death benefits is denied. The appellant contends that she should be considered the Veteran’s surviving spouse as their divorce was the due to the misconduct of, or procured by, the Veteran without the fault of the appellant. While sympathetic to the appellant’s case, the Board finds that the law precludes classification of the appellant as the Veteran’s surviving spouse because she did not have a valid marriage to the Veteran at the time of his death in February 2011. Subject to certain requirements, VA death benefits may be paid to a surviving spouse of a veteran. 38 U.S.C. § 1102; 38 C.F.R. § 3.54. 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. In this case, there is no dispute that the Veteran and the appellant divorced in December 1986. The appellant acknowledged this in her August 2015 claim and a certificate of divorce absolute is of record. The Veteran’s death certificate lists his marital status as “divorced” and the appellant is identified as the last spouse. As the appellant and Veteran’s marriage was terminated by divorce in 1986, as a matter of law the Board must find that she had no valid marriage to the Veteran at the time of his death in February 2011 and, therefore, she cannot be recognized as his surviving spouse. The Board acknowledges the appellant’s position that she should be recognized as the surviving spouse of the Veteran as the divorce was due to the misconduct of, or procured by, the Veteran without the fault of the appellant. However, the law provides no exception to the statutory mandate that a surviving spouse and veteran be married at the time of the veteran’s death. Rather, the exception raised by the appellant under 38 U.S.C. § 101(3) applies to the requirement that the spouse live with the veteran continuously from the date of marriage to the date of the veteran’s death. See Haynes v. McDonald, 785 F.3d 614 (2015). To the extent that the appellant’s arguments and submitted evidence suggest that the Board should consider it most equitable (fair or just) to recognize her as the Veteran’s surviving spouse, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that “no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.” Smith v. Derwinski, 2 Vet. App. 429 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414 (1990). While the Board is sympathetic to the appellant’s case, the law is well-defined and straightforward. 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).   Therefore, the Board has no alternative but to deny recognition of the appellant as the Veteran’s surviving spouse; accordingly, she has no legal right to receive VA death benefits based upon the Veteran’s service and his death. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Vashaw, 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.