Citation Nr: 21066111 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-54 550 DATE: October 28, 2021 ORDER Recognition of the appellant as the surviving spouse for purposes of establishing eligibility for Department of Veterans Affairs (VA) dependency and indemnity compensation (DIC) benefits is denied. FINDING OF FACT 1. The Veteran and the appellant were married in January 1961; their divorce was finalized in July 1992. 2. The Veteran died in July 2001, and his death certificate indicates that he was divorced at the time of his death CONCLUSION OF LAW The appellant may not be recognized as the surviving spouse of the Veteran for the purpose of entitlement to VA DIC benefits. 38 U.S.C. §§ 101(14), 103, 1310, 1541, 5107(b); 38 C.F.R. §§ 3.1(j), 3.50(b), 3.53. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1960 to May 1962. 1. Recognition of the appellant as the surviving spouse for purposes of establishing eligibility for VA DIC benefits When a veteran dies the surviving spouse may be eligible for VA death benefits, to include DIC, death compensation, and death pension. 38 U.S.C. §§ 101(14), 1310, 1541; 38 C.F.R. § 3.50(b). Consequently, surviving spouse status is a threshold requirement for both DIC and death pension benefits. For a person to establish recognition as a surviving spouse of a deceased veteran, there must be evidence of a valid marriage to the veteran under the laws of the appropriate jurisdiction. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The validity of a marriage is determined based upon the law of the jurisdiction where the parties resided at the time of marriage or when the rights to benefits accrued. 38 C.F.R. § 3.1(j) (2020). 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; (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 and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. §§ 3.50(b), 3.53. When there is an approximate balance of positive and negative evidence regarding any issue material ot the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). The facts in this case are not in dispute. The evidence of record shows that the appellant and the Veteran married in January 1961, and they divorced in July 1992. The appellant does not dispute that she was not married to the Veteran at the time of his death in July 2001. See also Certificate of Death (indicating that the Veteran was divorced at the time of his death). 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 DIC benefits. 38 C.F.R. §§ 3.1(j), 3.50(b). The Board acknowledges that the appellant contends that even though the Veteran and her had divorced, that they had been living together and taking care of each other up to the Veteran's death. To support her contention, the appellant and her family, to include their children and grandchildren, testified before the undersigned that the Veteran and the Appellant lived in the same home until the Veteran's death in 2001. While the Board does not contest these facts of cohabitation, and indeed mutual care, such does not overcome the fact the Veteran and the Appellant were not legally married at the time of his death, and as such, the VA cannot recognize the Appellant as the Veteran's surviving spouse. While the Board appreciates the Appellant's testimony, and those of her family, the Board must abide by the guiding regulations set forth by the applicable laws regarding establishment of a surviving spouse for benefits purposes. Here, the threshold requirement of such eligibility, is to be legally married to the Veteran at the time of his death; as it is not contested by the Appellant that the Veteran and her had been divorced at the time of the Veteran's death, such inquiry regarding DIC must end. Although the Board is sympathetic to the appellant's contentions, the Board is bound by law, and its decision is dictated by the relevant statutes and regulations. Moreover, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable. See Harvey v. Brown, 6 Vet. App. 416, 425(1994). The Board also observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33(1992). Based on above, the Board finds that the preponderance of the evidence is against the appellant's claim and the benefit-of-the-doubt doctrine does not apply here. Consequently, the appellant's claim must be denied. 38 U.S.C. §§ 101(14), 103, 1310, 1541, 5107(b); 38 C.F.R. §§ 3.1(j), 3.50(b), 3.53. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.