Citation Nr: 20036721 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 11-05 032 DATE: May 28, 2020 ORDER Recognition as the Veteran's surviving spouse for purposes of establishing eligibility for payment of VA dependency and indemnity compensation (DIC) is denied. FINDINGS OF FACT 1. The Veteran died on March [REDACTED], 2005. 2. The appellant and the Veteran married in August 1986 and were legally divorced in March 1992. 3. Following the divorce of the Veteran and the appellant in March 1992, the Veteran and the appellant did not thereafter remarry each other or otherwise hold themselves out as husband and wife. CONCLUSION OF LAW The appellant may not be recognized as the surviving spouse of the Veteran for the purpose of entitlement to VA benefits. 38 U.S.C. §§ 101, 103, 5107 (2012); 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.102 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to February 1969.He was the recipient of the Purple Heart. The Veteran died in March 2006. The Appellant has claimed to be his surviving spouse. A January 2010 administrative decision deemed the Appellant ineligible for VA benefits under the provisions of 38C.F.R.§3.50 as they apply to a surviving spouse, for the reason that the Appellant divorced the Veteran in 1992 and remarried in 1995. The Appellant submitted a timely notice of disagreement to that issue. The RO issued an SOC on December 7, 2010, to the Appellant’s address of record, which informed her that she must file a substantive appeal within 60 days, and that she could complete her appeal with the enclosed VA Form 9. A substantive appeal was signed by the Appellant on February 17, 2011 and received by VA on February 18, 2011. In a July 2012 letter, the RO informed the Appellant that VA could not accept her substantive appeal as the time limit to continue her appeal had passed. The Appellant appealed this denial to the Board, which, in turn, found the Appellant’s Form 9 untimely in a May 2018 Decision. The Appellant appealed the May 2018 Decision to the United States Court of Appeals for Veterans Claims (Court), which vacated the Board’s Decision in an October 2019 Order consistent with the terms of a Joint Motion for Remand (JMR). In a subsequent April 2020 Board Decision, the Appellant’s February 2011 VA Form 9 as to the December 2010 SOC was accepted as timely and accordingly the issue below is now before the Board. Recognition as the Veteran's surviving spouse for purposes of establishing eligibility for payment of VA DIC In order to establish status as a claimant for the purposes of entitlement to VA death benefits, the appellant must submit evidence of a valid marriage to the Veteran under the laws of the appropriate jurisdiction. The appellant must also meet the criteria of a surviving spouse. See 38 U.S.C. § 1541 (2012); 38 C.F.R. §§ 3.1(j), 3.50(a), (b) (2018); Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). For VA benefits purposes, a marriage "means a marriage valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the rights to benefits accrued." 38 C.F.R. § 3.1 (j). The term "surviving spouse," means a person whose marriage to the 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. 38 C.F.R. § 3.50(b). The surviving spouse of a Veteran must have lived with the Veteran continuously from the date of marriage to the date of the Veteran's death except where there was a separation that was due to the misconduct of, or procured by, the Veteran without the fault of the spouse. 38 C.F.R. § 3.50(b)(1) (2019). Finally, a surviving spouse of a Veteran must not have remarried or not since the death of the Veteran and after September 19, 1962, lived with another person and held herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50(b)(2). The validity of a divorce decree, regular on its face, will be questioned by the VA only when such validity is put in issue by a party thereto or a person whose interest in a claim for VA benefits would be affected thereby. 38 C.F.R. § 3.206 (2019). The appellant contends that she should be recognized as the deceased Veteran's surviving spouse and granted entitlement to VA death benefits. The evidence indicates the appellant and Veteran were married in August 1986. A copy of a divorce decree filed in Texas reflects that the appellant and the Veteran were legally divorced in March 1992. A death certificate shows that the Veteran died in March 2005 and was listed as “divorced” at the time of his death. On her application, the appellant indicated she was the Veteran’s “ex-wife” and that she had not continuously cohabitated with the Veteran until he died. The law clearly requires that a surviving spouse be married to the Veteran at the time of his death in order to be considered the surviving spouse. As the appellant was not married to the Veteran at the time of his death, the appellant is not the Veteran's surviving spouse for the purpose of establishing entitlement to certain VA benefits. 38 C.F.R. §§ 3.1(j), 3.50. Although there are exceptions to the requirement that an appellant has lived continuously with a Veteran from the time of the marriage to the time of that Veteran's death, the exceptions only apply in instances where a Veteran and an appellant were still legally married at the time of the Veteran's death. See 38 C.F.R. § 3.53 (2019). There is no exception to the requirement that an appellant has been married to a Veteran at the time of the Veteran's death in order to be considered a surviving spouse. Here, no legal exception is applicable that would allow the appellant to receive benefits. She does not assert, nor does the evidence show, that she and the Veteran had, after the divorce, remarried, attempted to remarry or otherwise held themselves out as husband and wife. In this regard, the evidence does not show, and the appellant does not allege, that she and the Veteran agreed to enter a marital relationship and cohabitated after their divorce. Based on the foregoing, the Board finds that the preponderance of evidence establishes the appellant's marriage was terminated by divorce in March 1992. As such, the appellant does not meet the criteria for surviving spouse for the purposes of entitlement to VA death benefits. See 38 C.F.R. §§ 3.1(j), 3.50(a)(b). Although the Board has considered the appellant's contentions, it is the law, and not the facts, that is dispositive of the claim as she does not meet the legal criteria to establish status as the deceased Veteran's surviving spouse for purposes of VA benefits. As the appellant's claim fails because of absence of legal merit or lack of   entitlement under the law, the claim must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.A. Elliott II, 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.