Citation Nr: 20060356
Decision Date: 09/14/20	Archive Date: 09/14/20

DOCKET NO. 20-14 894
DATE: September 14, 2020

ORDER

Termination of dependent pay for spouse J.S., effective July 1, 2012, was proper.

FINDING OF FACT

The Veteran’s spouse, J.S., passed away on June [REDACTED], 2012.  Additional pay for the Veteran’s dependent spouse terminated the last day of the month of June 2012.

CONCLUSION OF LAW

The criteria for entitlement to dependent pay for spouse J.S. beyond June 30, 2012 are not met.  38 U.S.C. § 5112; 38 C.F.R. §§ 3.105(h), 3.500(g)(2); Sabonis v. Brown, 6 Vet. App. 426 (1994).   

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Navy from October 1958 to October 1968.

This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 decision of a Department of Veterans Affairs (VA) Regional Office (RO).  Jurisdiction of the Veteran’s claims file currently resides with the Baltimore, Maryland RO. 

Termination of Dependent Pay for Spouse J.S. 

As indicated above in the Conclusions of Law section, the Board finds that the termination of dependent pay for the Veteran’s spouse, J.S., effective July 1, 2012, was proper.  Accordingly, the Board denies the Veteran’s appeal.

In support of this determination, the Board first notes that this case was initiated by a VA letter sent to the Veteran in July 2016 proposing a reduction in the Veteran’s compensation payments.  Specifically, VA informed the Veteran that it had learned from the Social Security Administration that his spouse, J.S., passed away on June [REDACTED], 2012 and, thusly, VA was to remove her as a dependent from his award.  Pursuant to 38 C.F.R. § 3.105(h), the Veteran was informed that he had 60 days to present additional evidence to demonstrate that his benefits should be continued at their present level.  After expiration of this 60-day period, VA issued its decision terminating J.S. from the Veteran’s award in October 2016.  The Board concludes that VA fulfilled its due process requirements in the issuance of the October 2016 decision.

Moving to the merits of the Veteran’s appeal, VA regulations state that, upon the death of a dependent on or after October 1, 1982, payment of additional compensation for a veteran’s dependent will be reduced effective the last day of the month in which such death occurred.  38 C.F.R. § 3.500(g)(2)(ii).  In the instant case, J.S. died on June [REDACTED], 2012.  Thus, pursuant to 38 C.F.R. § 3.500(g)(2)(ii), J.S. was removed from the Veteran’s award effective July 1, 2012, as June 30, 2012 was the last day of the month in which J.S.’s death occurred.

While the Board is sympathetic to the Veteran’s concerns about a reduction in his income and the time period where he notified individuals at the Washington, DC VA Medical Center of his spouse’s death, see, e.g., March 2020 VA Form 9,October 2016 Notice of Disagreement, it must deny his appeal as a matter of law because payments for a deceased dependent spouse may not continue in the months following the month of death.  See Sabonis v. Brown, 6 Vet. App. 426 (1994). 

 

S.C. KREMBS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	N.S. Pettine, 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.