Citation Nr: 20007985 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 19-10 464 DATE: January 30, 2020 ORDER Entitlement to dependency and indemnity compensation (DIC) is denied. Entitlement to accrued benefits is denied. Entitlement to death pension is denied. FINDINGS OF FACT 1. The Appellant and the Veteran were married in March 1985. 2. The Veteran died in July 1990; the death certificate lists the probable manner of death as due to a homicide occurring in a night club. 3. The death certificate notes the Veteran’s marital status as divorced. 4. At the time of the Veteran’s death, service connection was not in effect for any disabilities. 5. The Veteran’s cause of death is not related to his service. 6. There was no claim for benefits pending at the time of the Veteran’s death; and no periodic monetary benefits were due and payable at the time of the Veteran’s death. 7. The Appellant remarried in March 1996. CONCLUSIONS OF LAW 1. The criteria for entitlement to DIC have not been met. 38 U.S.C. §§ 101, 103, 1310; 38 C.F.R. §§ 3.1, 3.5, 3.50, 3.55. 2. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 101, 103, 5121; 38 C.F.R. §§ 3.1, 3.50, 3.55, 3.1000. 3. The criteria for entitlement to death pension have not been met. 38 U.S.C. §§ 101, 103, 1521, 1541; 38 C.F.R. §§ 3.1, 3.3, 3.50, 3.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1983 to August 1986 and from July 1987 to April 1990. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2018 notification letter by the Department of Veteran’s Affairs (VA) Regional Office (RO). Entitlement to DIC, entitlement to accrued benefits, and entitlement to death pension. The Appellant contends that she is entitled to DIC, accrued benefits and death pension following the Veteran’s Death. See May 2018 Application for DIC, Death Pension, and or Accrued Benefits. In July 2018, the Regional Office notified the appellant that her claim for DIC, accrued benefits, and death pension was denied because the evidence shows that she remarried and as a result is not recognized as the surviving spouse of the Veteran. In addition, it notes that the death certificate the Appellant submitted showed that the Veteran was divorced at the time of his death. The threshold question that must be addressed in any claim for VA benefits is whether the person seeking the benefit is a proper claimant for the benefit sought. If the appellant is not established as a proper claimant, the claim can proceed no further. The appellant has the burden to establish her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). DIC is payable to the surviving spouse of a deceased veteran in the event of a service-connected death. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. Accrued benefits are payable to the surviving spouse for any periodic monthly benefits to which the Veteran was entitled to at the time of his death, to include claims pending at the time of his death, based on the evidence of record at the time of his death, which were due and unpaid. 38 U.S.C. § 5121; 38 C.F.R. §§ 3.160, 3.1000; see also Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Death pension is a benefit payable to the surviving spouse of a veteran who served during a period of war who died due to a non-service-connected disability. 38 U.S.C. §§ 1521 (j), 1541; 38 C.F.R. §§ 3.2, 3.3(b)(4). As an initial matter, the Board must determine whether the Appellant qualifies as the Veteran's surviving spouse for either DIC, accrued benefits or death pensions purposes. A "surviving spouse" is a person whose marriage to the Veteran was valid under the law of the place where the parties resided at the time of marriage, when the right to benefits accrued, and who was the spouse of the veteran at the time of death provided he or she (1) lived with the veteran continuously from the date of marriage to the date of the veteran's death, with the exception where they were separated due to the misconduct of or procured by the veteran without the fault of the spouse; and (2) has not remarried or lived with another person of the opposite sex and held themselves out to be the spouse of such other person openly to the public since the veteran's death. 38 U.S.C. § 103 ; 38 C.F.R. §§ 3.1(j), 3.50. Notwithstanding the above, remarriage by the surviving spouse shall not bar the furnishing of benefits if the marriage was void or has been annulled by a court having basic authority to render annulment decrees, unless it is determined by the VA the annulment was obtained through fraud by either party or by collusion. 38 C.F.R. § 3.55(a)(i), (ii). Further, on or after January 1, 1971, if the remarriage is terminated prior to November 1, 1990, or terminated by legal proceedings commenced prior to November 1, 1990, by an individual who, but for remarriage, would be considered the surviving spouse, it shall not be a bar to the furnishing of benefits provided the marriage has been terminated by death or has been dissolved by a court with basic authority to render divorce decrees, unless it is determined by the VA the divorce was secured through fraud by the surviving spouse or by collusion. 38 C.F.R. § 3.55(2). There are no other exceptions bearing on remarriage and the restoration of eligibility as the surviving spouse for accrued benefits or death pension purposes. However, with respect to DIC, the following additional exceptions may be applicable. On or after October 1, 1998, if the remarriage of a surviving spouse is terminated by death, divorce or annulment, it shall not be a bar to DIC, unless it is determined by the VA the divorce or annulment was secured through fraud or collusion. 38 C.F.R. § 3.55(3). On or after January 1, 2004, the remarriage of a surviving spouse after the age of 57 shall not bar DIC. A surviving spouse who remarried after the age of 57, but before December 16, 2003, may be eligible for DIC provided the application for such benefits was received by the VA before December 16, 2004. 38 C.F.R. § 3.55(10). Here, the evidence of record includes a marriage certificate showing that the Veteran and Appellant were married in March 1985. A son was born to the couple in July 1985. See October 1988 Military Personnel Record. The Veteran’s death certificate notes that he died in July 1990 from a homicide in a night club. This death certificate notes that at the time of his death he was divorced. The Appellant contends that although the death certificate notes that the Veteran was divorced, she states that she and the Veteran were only separated at the time of his death. See September 2019 Correspondence. After the death of the Veteran, the Appellant remarried in March 1996. See Congressionals- March 1996 Marriage Certificate. At the time of this marriage, the Appellant was 27 years old. Id. The Appellant states that this marriage terminated in divorce shortly after, but she has not provided a divorce certificate indicating the exact date of this divorce. One claiming to be the spouse of a veteran has the burden to come forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The VA provided the Appellant with notice of what additional evidence was needed in her case. Some of the requested documents included the history of her previous marriages and her divorce decrees. See July 2019 Development Letter. The Appellant’s remarriage in March 1996 terminated her eligibility as the Veterans’ surviving spouse for DIC, accrued benefits and death pensions. Although her remarriage was terminated by divorce, the evidence of record does not indicate that any of the above noted exceptions for termination of marriage apply. See 38 C.F.R. § 3.55(2)(3)(10). The Appellant was 27 years old at the time of her remarriage, and the evidence does not indicate that her divorce occurred on or after October 1998. Considering the above, the Appellant is not entitled to DIC, accrued benefits or death pension as a matter of law because she does not qualify as the Veteran's surviving spouse. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board further finds that at the time of the Veteran’s death, service connection was not in effect for any disabilities. The Board is sympathetic to the Appellant, but notes that the Veteran died three months after separation from service. There is no competent evidence of record to show an association between the Veteran’s service and the cause of his death. As the Veteran is not shown to have died from a service-connected disability, DIC benefits are not payable. U.S.C. § 1310; 38 C.F.R. § 3.5. In regard to the Appellants claim for accrued benefits, the Board finds that the evidence does not show that the Veteran had a claim pending at the time of his death, or any periodic monetary benefits at the time of his death which were due and unpaid. See 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). Also, the Board notes that in order to claim accrued benefits, the Appellant’s application for accrued benefits should have been filed within 1 year after the date of the Veteran’s death. 38 C.F.R. § 3.152(b). The Appellant filed her application in May 2018, 28 years after the Veteran’s death. Based on the foregoing, there are no accrued benefits, and the appellant's claim is denied as a matter of law. In reviewing the Appellant’s claim for death pension, the Board finds it commendable that the Veteran served in the Army for six years, but notes this service period was not during a period of war. As such, the Appellant is not entitled to VA nonservice-connected death pension benefits. 38 U.S.C. §§ 1521 (j), 1541; 38 C.F.R. §§ 3.2, 3.3(b)(4). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Johnson, 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.