Citation Nr: 20007963 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 17-09 022 DATE: January 30, 2020 ORDER Eligibility for and entitlement to Dependency and Indemnity Compensation (DIC) is denied. REMANDED Entitlement to death benefits is remanded. Entitlement to accrued benefits is remanded. FINDINGS OF FACT 1. The Veteran died in February 2010. 2. The appellant is the Veteran’s sister. CONCLUSION OF LAW The criteria for eligibility for and entitlement to DIC have not been met. 38 U.S.C. §§ 101 (3), 1310, 5301; 38 C.F.R. §§ 3.5, 3.50. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Army from March 1987 to June 1992. He died in February 2010. The appellant is his sister. The record reflects that a new power of attorney (POA) was executed via a May 2019 VA Form 21-22, listing the Georgia Department of Veteran Services as the Appellant’s current representative. In this regard, the receipt of a new POA constitutes a revocation of the existing power of attorney for DAV, despite the record reflecting that an Informal Hearing Presentation was recently associated with the claims file. 38 C.F.R. § 14.631 (f)(1). In light of the above, Georgia Department of Veteran Services is the correct accredited representative of record at this time, as the previous POA was revoked. Eligibility for and entitlement to DIC When a veteran dies, his or her surviving spouse may be eligible to VA death benefits, to include DIC benefits, death compensation, and death pension. See 38 U.S.C. §§ 1121, 1310, 1541; 38 C.F.R. § 3.50 (a). VA DIC benefits are payable to a surviving spouse who was married to a veteran: (1) within 15 years of the end of the period of service in which the injury or disease causing the veteran’s death was incurred or aggravated; or (2) one year or more; or (3) for any period of time if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C. § 1304; 38 C.F.R. § 3.54 (c). Consequently, “surviving spouse” status is a threshold requirement for DIC, death pension, and accrued benefits. A surviving spouse for VA purposes is defined as a person whose marriage to a veteran meets the requirements of 38 C.F.R. § 3.1 (j) and who was the spouse of the veteran at the time of the veteran’s death; and (1) 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 fault of the spouse; and (2) has not remarried or has not since the death of the veteran lived with another person of the opposite sex and held himself/herself out openly to the public to be the spouse of such other person. See 38 C.F.R. §§ 3.50 (b), 3.53. A surviving spouse may qualify for pension, compensation, or dependency and indemnity compensation under the appropriate circumstances. See 38 C.F.R. § 3.54. The appellant has the burden to establish her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). In the present case, the appellant reported that she was the Veteran’s older sister and not his surviving spouse. As cited above, the criteria for recognition as a surviving spouse for purposes of entitlement to DIC require that the appellant be the spouse of the Veteran at the time of his death. See 38 U.S.C. §§ 101 (3), 1310; 38 C.F.R. §§ 3.5, 3.50 (b). Indeed, the undisputed evidence of record shows that the appellant was not married to the Veteran at the time of his death as she has consistently stated and confirmed that she was the Veteran’s older sister. Thus, the appellant’s status bars her from eligibility for status to receive DIC. Id. Since the criteria for establishing surviving spouse status are not met, and the appellant is not a proper claimant for the benefit sought. Accordingly, her claim of entitlement to DIC must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND Accrued benefits, to include nonservice connected burial benefits, and death benefits, is remanded. The Board observes that the appellant asserts that she seeks accrued benefits and death benefits because she is the legal guardian of his two minor children, J.M. and S.M. The Board notes that the regional office (RO) has requested that the appellant provide documentation confirming that she has been named the children’s legal guardian or custodian, but that no such documents were submitted by the appellant. However, the RO did not seek confirmation from the appellant. The RO should undertake efforts to confirm that the appellant has been appointed the legal guardian or custodian of the Veteran’s two minor children, J.M. and S.M. The matters are REMANDED for the following action: 1. The RO should contact the appellant and request that all legal documents indicating whether the appellant has is the guardian or custodian of the Veteran’s two minor children, J.M. and S.M. (Continued on the next page)   If the nature of guardianship or custodianship over J.M. and S.M. cannot be ascertained, the RO should clearly document the claims file. 2. When the development requested has been completed, review the case on the basis of additional evidence. If any benefit sought is not granted, the appellant and her representative, if any, should be furnished a supplemental statement of the case (SSOC). M.J. COLICELLI Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee 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.