Citation Nr: 21000767 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-09 337 DATE: January 6, 2021 ORDER Entitlement to recognition as H.G.’s surviving spouse for Department of Veterans Affairs (VA) survivor benefits purposes is denied. FINDINGS OF FACT 1. The appellant and H.G. were divorced in 1993 and were not married to each other at the time of H.G.’s death. 2. H.G. was married to an individual other than the appellant at the time of his death. CONCLUSION OF LAW The criteria for status as surviving spouse for VA survivor benefits purposes are not met. 38 U.S.C. §§ 103, 1121, 1310, 1541; 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.55, 3.205. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant asserts that H.G. served on active duty in the United States Army. H.G. died in July 2010. See July 2016 Report of First Notice of Death. The appellant asserts that she is entitled to VA survivor benefits as H.G.’s surviving spouse. See July 2016 VA Form 21-534; August 2016 Notice of Disagreement (NOD); January 2017 VA Form 9. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 decision by an agency of original jurisdiction (AOJ) of the VA. Initially, the Board observes that the evidence of record does not show that H.G. had qualifying service that would entitle a surviving spouse to VA benefits. See 38 C.F.R. §§ 3.2, 3.3, 3.6. However, as this matter would turn on other questions even if qualifying service was shown, the Board will focus on the appellant’s status as H.G.’s surviving spouse. A veteran’s surviving spouse may be eligible to receive certain VA survivor benefits. See 38 U.S.C. §§ 1121, 1310, 1541; 38 C.F.R. § 3.50. For purposes of entitlement to various VA survivor benefits, a “surviving spouse” is defined as a person whose marriage to the veteran was 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 right to benefits accrued; 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 the fault of the spouse; and (2) except as provided in 38 C.F.R. § 3.55, has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50. Where an attempted marriage of a claimant to a veteran was invalid by reason of a legal impediment, the marriage will nevertheless be deemed valid if (1) the marriage occurred one year or more before the veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage, (2) the claimant entered into the marriage without knowledge of the impediment, (3) the claimant cohabited with the veteran continuously from the date of marriage to the date of his or her death, and (4) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the veteran’s death. 38 C.F.R. § 3.52. Where a surviving spouse has met these requirements and submitted adequate proof of marriage, his or her signed statement that he or she had no knowledge of an impediment to the marriage to the veteran will be accepted, in the absence of information to the contrary, as proof of that fact. The appellant asserts that she is entitled to VA survivor benefits because she was married to H.G. for decades and, although she was divorced from H.G., she was forced to do so because of his misconduct. See, e.g., August 2016 NOD. VA survivor benefits may, under some circumstances, be awarded where a veteran and the spouse are separated at the time of the veteran’s death due to the veteran’s misconduct. However, this does not entitle the appellant to benefits in this case, because even if H.G. and the appellant were separated by reason of H.G.’s misconduct, the appellant concedes that she and H.G. were divorced in 1993. See VA Form 21-534; Divorce Decree. Moreover, the law requires that a veteran and surviving spouse continuously cohabitate at the time of the veteran’s death. Here, the appellant concedes that H.G. was married to someone else at the time of his death. See VA Form 21-534 (explaining that H.G. was married to L.W. two months prior to his death). Even if L.W. is also deceased, this does not alter the fact that the appellant was not married to H.G. up until the time of his death. Additionally, the appellant does not assert that she believed that she and H.G. were actually married at the time of his death. To the contrary, she concedes that H.G. was married to someone else. The Board is sympathetic the appellant’s explanation that she and H.G. were married for many years and that their divorce was ordered by a court due to H.G.’s misconduct. However, the law is clear that a former spouse is not entitled to survivor benefits where the spouse and veteran are divorced and the appellant understands that they are legally divorced. Accordingly, the appeal must be denied. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, 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.