Citation Nr: 20021085 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 16-58 739A DATE: March 24, 2020 ORDER Entitlement to recognition as the Veteran’s surviving spouse for the purpose of dependency and indemnity compensation (DIC) benefits is denied. FINDING OF FACT 1. The appellant and the Veteran were married in March 1968 and divorced in December 1974. 2. The evidence does not show that the December 1974 divorce decree was set aside by a court of competent jurisdiction due to fraud and misconduct prior to the Veteran’s death in October 1992. CONCLUSION OF LAW The appellant is not entitled to recognition as the Veteran’s surviving spouse for the purpose of receiving DIC benefits. 38 U.S.C. § 101, 103; 38 C.F.R. § 3.1 (j), 3.50, 3.52, 3.53, 3.54, 3.102, 3.215. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1961 to January 1967. The Veteran died in October 1992. The Veteran’s certificate of death lists arrythmia and acute necrotizing pancreatitis as the cause of his death. The appellant is the Veteran’s former spouse who seeks classification as the Veteran’s surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 administrative decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In a February 2020 Board hearing, the appellant testified before the undersigned Veterans Law Judge. A hearing transcript has been associated with the claims file. 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). Analysis The appellant contends that she is the Veteran’s surviving spouse, and, therefore, is entitled to DIC benefits. In September 2015, the appellant filed an application for DIC benefits. In its May 2016 administrative decision, the agency of original jurisdiction (AOJ) denied the appellant’s claim because the appellant was not established as the Veteran’s surviving spouse. The parties were married on or about March 1968. The Veteran and the appellant were divorced in December 1974. The Board notes that the divorce is final and was entered by a Judge of the Superior Court Atlanta Circuit. The evidence does not show that the December 1974 divorce decree was set aside by a court of competent jurisdiction at any time prior to the Veteran’s death, and the appellant has not contended that she was not divorced from the Veteran. Indeed, in her September 2015 DIC application, the appellant fully admits that she and the Veteran were divorced. Additionally, in a February 2020 Board hearing, the appellant testified she was divorced from the Veteran in 1974 and never remarried. Significantly, the Veteran’s death certificate lists his marital status as divorced at the time of his death. See October 1992 Certificate of Death for State of Georgia. As cited above, the criteria for recognition as a surviving spouse for purposes of entitlement to DIC requires that an appellant was the spouse of the Veteran at the time of the Veteran’s death and 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. See 38 U.S.C. §§ 101 (3), 1310; 38 C.F.R. §§ 3.5, 3.50(b). The undisputed evidence of record shows that the appellant was not married to the Veteran at the time of the Veteran’s death. Therefore, the Board finds that the criteria for establishing surviving spouse status have not been met, and the appellant is not a proper claimant for the benefit sought. Accordingly, her claim of entitlement to DIC benefits must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Gerlt, Law Clerk 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.