Citation Nr: 21066919 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 18-07 816 DATE: November 2, 2021 ORDER Entitlement to recognition as the Veteran's surviving spouse for death pension compensation purposes is denied. FINDINGS OF FACT 1. The Veteran and the appellant were married in May 1952 and remained married until the Veteran's death in August 1981. 2. The appellant provided documentation showing that she remarried in April 1990 and that the remarriage was terminated by death in November 2013. CONCLUSION OF LAW The criteria for recognition as the surviving spouse of the Veteran for purposes of death pension benefits are not met. 38 U.S.C. §§ 101, 103, 1310, 1541; 38 C.F.R. §§ 3.1, 3.3, 3.5, 3.50, 3.53, 3.55, 3.204. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from January 1949 to January 1950 and from October 1950 to November 1951. He died in August 1981. This matter comes to the Board of Veterans' Appeals (Board) from a June 2017 notification of a decision of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which denied the appellant's claim of entitlement to death pension and Dependency and Indemnity Compensation (DIC). The appellant requests benefits as a surviving spouse. This appeal was most recently before the Board in December 2019, at which time it was remanded for additional development. The Board finds that the AOJ substantially complied with remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In February 2020, the AOJ notified the appellant that she was recognized as the Veteran's surviving spouse for the purposes of DIC. This represents a full grant of that issue that was previously on appeal, and it is no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). The issue of recognition as the Veteran's surviving spouse for death pension purposes, which is a separate issue from recognition as a surviving spouse for DIC, remained denied by the AOJ and has since returned to the Board for adjudication. 1. Entitlement to recognition as the Veteran's surviving spouse for death pension compensation purposes Basic entitlement to nonservice-connected death pension benefits for a surviving spouse of a veteran exists if: (1) the veteran had qualifying service under 38 U.S.C. § 1521 (j); or (2) the veteran was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability based on service during a period of war; and (3) and the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the applicable maximum annual pension rate specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1541; 38 C.F.R. § 3.3 (b)(4). An individual claiming to be the spouse of a veteran has the burden of coming forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991); Colon v. Brown, 9 Vet. App. 104, 107-08 (1996). A "surviving spouse" is defined in relevant part as a person: (1) whose marriage to a veteran was valid under the law of the place where the parties resided at the time of marriage or the law of the place where the parties resided when the right to benefits accrued; (2) who was the spouse of the veteran at the time of the veteran's death; (3) who lived with the veteran continuously from the date of marriage to the date of the veteran's death (i.e. continuous cohabitation); and (4) who, 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 (b). Remarriage is generally a bar to eligibility for status as a surviving spouse, but there are ten exceptions to that general rule. 38 U.S.C. §§ 103 (d), 1311(e); 38 C.F.R. §§ 3.55 (a). Notably, there are only two exceptions that apply to VA survivors' pension benefits. Under 38 C.F.R. § 3.55 (a)(1), remarriage of a surviving spouse shall not bar the furnishing of benefits to such surviving spouse if the marriage was void or annulled. 38 C.F.R. § 3.55 (a)(1). The second exception under 38 C.F.R. § 3.55 (a)(2) allows for a remarried appellant to be recognized as the Veteran's surviving spouse if the subsequent marriage (or conduct construed as subsequent marriage) was terminated on or after January 1, 1971, but prior to November 1, 1990. However, for marriages ending after November 1, 1990, there are no applicable provisions to reinstate eligibility for death pension benefits after a remarriage, even if the appellant's subsequent marriage has ended in divorce. 38 C.F.R. § 3.55 (a)(2). The record demonstrates that the appellant and the Veteran married in May 1952. The Veteran died in August 1981. The Veteran's death certificate lists the appellant's name as the Veteran's spouse. Accordingly, the Board finds that the appellant has established that she was married to the Veteran at the time of his death. However, the Appellant remarried in April 1990. Her second husband died in November 2013. The appellant's name is listed as his spouse. Since a surviving spouse is defined by law as a person who has not remarried, the appellant's remarriage bars her from eligibility for status as the Veteran's surviving spouse. 38 U.S.C. § 101 (3); 38 C.F.R. § 3.50 (b)(2). Thus, under the general definition of a surviving spouse, once the appellant remarried, she no longer had the status of a surviving spouse of the Veteran for purposes of VA benefits. The exception identified under 38 C.F.R. § 3.55(a)(1) does not apply in this case. The appellant's remarriage after the Veteran's death was not voided or annulled, but rather was terminated by death. The November 2013 Certificate of Death indicates as much, and the appellant has not maintained that her second marriage was void or annulled. The appellant has reported that when the Veteran died, she was a widow for over eight years, and now has been widowed a second time for over seven years. Therefore, the Board finds that there is no evidence in the file to support a finding of the appellant's remarriage having been voided or annulled. The second exception under 38 C.F.R. § 3.55(a)(2) also does not apply here. Since the appellant's remarriage was not terminated prior to November 1, 1990, this exception is inapplicable. Accordingly, the Board finds that the appellant cannot be recognized as the deceased Veteran's surviving spouse for the purpose of establishing eligibility for VA survivors' pension benefits. The Board acknowledges the appellant's and her children's descriptions of her marriage to the Veteran and the support and care she provided during his lifetime. The Board further acknowledges that the appellant remarried for companionship, is widowed again, and is need of assistance, especially given her financial and health difficulties. However, this is a situation where the Board is unable to grant benefits out of equity or fairness. The laws enacted by Congress, and regulations promulgated in pursuit thereof by VA, have tied the Board's hands. As matter of law, the Board has no discretion and cannot grant the appeal. See Davenport v. Principi, 16 Vet. App. 522 (2002); Harvey v. Brown, 6 Vet. App. 416 (1994); Sabonis v. Brown, 6 Vet. App. 426 (1994). In sum, because the appellant remarried after the Veteran's death, and because the remarriage was not void or annulled, and because the remarriage was not terminated prior to November 1, 1990 or terminated by legal proceedings commenced prior to November 1, 1990, the appellant may not be recognized as the Veteran's surviving spouse for the purpose of establishing eligibility for VA survivors' pension benefits. As noted, the Board is sympathetic to the appellant's claim and does not dispute the fact that the appellant was married to the Veteran at the time of his death. Nevertheless, the appellant's claim of entitlement to survivors' pension benefits must be denied as a matter of law. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.