Citation Nr: 21068335 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-28 481 DATE: November 10, 2021 ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. §§ 1310 or 1318. ORDER Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. §§ 1310 or 1318 is dismissed. FINDINGS OF FACT 1. The Veteran died on October [REDACTED], 2014. 2. The Veteran and his surviving spouse, the Appellant, were legally married on July [REDACTED], 2014; their marriage was less than one year, and they did not have any children together. 3. The Appellant is not qualified as an eligible claimant for entitlement to Dependency and Indemnity Compensation under 38 U.S.C. §§ 1310 or 1318. CONCLUSIONS OF LAW Because the Veteran has died, his surviving spouse does not qualify as a claimant, and there is no other qualified claimant, the Board has no jurisdiction to adjudicate the merits of the Appellant's claims. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from March 1966 to February 1968. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran passed away on October [REDACTED], 2014. The Appellant filed a claim for entitlement to Dependency and Indemnity Compensation (DIC) benefits in February 2016. The Appellant's claim was denied in a June 2016 rating decision. In July 2016, the Appellant filed a timely Notice of Disagreement (NOD), stating that she was seeking approval of "DIC, death pension, and accrued benefits." In the Remarks portion, the appellant wrote that she believes that "the cancer which caused my husband's death started while he was in military service. I am still in the process of researching his exposure to chemicals like Agent Orange which might have started the cancer which caused his death." She was issued a statement of the case (SOC) and filed a timely VA Form 9 in April 2017. In the VA Form 9, she requested a hearing, and wrote that she was "hoping that there is some type of waiver that would allow me to receive widow benefits." Her claim was eventually certified to the Board. Despite the various claims that the Appellant has made, for the reasons discussed below, the Board has characterized the Appellant's claim as one of entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. §§ 1310 or 1318. In a signed statement from October 2021, the Veteran's Representative indicted that they wished to withdraw their hearing request, so that "the Judge [may] make a decision on their appeal based on the evidence of record." As such, the Appellant's hearing request is considered withdrawn. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Appellant in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. §§ 1310 or 1318. As noted above, the Appellant has claimed that she is entitled to DIC benefits as the surviving spouse, and that the Veteran passed away as a result of possible exposure to herbicides which ultimately caused his cancer, and that she is furthermore entitled to any/all accrued benefits available. DIC is a monthly monetary benefit that is payable to a surviving spouse, child, or parent because of the service-connected death of a Veteran. 38 U.S.C. § 101 (14); 38 C.F.R. § 3.5 (b). Unless specifically limited by a claimant, the Board is required to consider all theories of entitlement to DIC benefits. See 38 C.F.R. § 3.152 (a), (b)(1); see Stoner v. Brown, 5 Vet. App. 488, 491 (1993). Each type of eligible claimant is specifically defined. Eligibility for DIC benefits is a threshold matter that must be established prior to adjudicating any DIC claim on the merits. The eligibility of a surviving spouse, child or parent is a separately appealable issue, and must first be adjudicated by the AOJ. See 38 C.F.R. § 3.104. Here, the RO has determined in an April 2017 statement of the case, that the Veteran's surviving spouse, the appellant in this case, is not an eligible claimant pursuant to VA laws and regulations because she was not married to the Veteran for at least one year prior to his death. A surviving spouse is a person who: (1) was the spouse of the Veteran at the time of the Veteran's death; (2) lived with the Veteran continuously from the date of marriage to the date of the Veteran's death; and (3) has not remarried or, since the death of the Veteran and after September 19, 1962, lived with another person and held themselves out openly to the public as the spouse of another person. 38 U.S.C. § 101 (3). Additional criteria apply depending on which type of DIC benefits the claimant is seeking. The first criteria to consider is the spousal status at the time of the Veteran's death. In order to be considered a surviving spouse of a Veteran, the claimant must have been validly married to the Veteran at the time of the Veteran's death. 38 U.S.C. § 103(c). The validity of a marriage will be determined based on the law of the place where the parties resided at the time of the marriage or where the parties resided when the right to benefits accrued. 38 U.S.C. § 103(c); 38 C.F.R. § 3.1(j); see also Scott v. Principi, 3 Vet. App. 352, 354 (1992). Here, the Appellant has provided a copy of the certificate of marriage, which shows that the Veteran and the Appellant were legally married on July [REDACTED], 2014. The Veteran's death certificate has also been uploaded to the claims file, which confirms that the Appellant was married to the Veteran at the time of his death, dated October [REDACTED], 2014. The Board thus finds that the appellant was the legal spouse of the Veteran at the time of his death. See 38 C.F.R. § 3.205 (a). The second criteria to be considered is whether the Veteran and his surviving spouse continuously cohabitated. To be a surviving spouse there must be continuous cohabitation from the date of marriage to the date of the Veteran's death. 38 U.S.C. § 101 (3). The claims file contains no evidence indicating that the Veteran and his spouse did not cohabitate. Thus, affording the Appellant the benefit of the doubt, she has also met this criterion. The third criteria to be considered is whether the Veteran's surviving spouse has remarried or meets one of several exceptions in the event she has remarried. To qualify as a surviving spouse, following the death of the Veteran a claimant must not have either (1) remarried or (2) after September 19, 1962, lived with another person and held himself or herself out openly to the public to the spouse of such other person. 38 U.S.C. § 101(3). Here, the Appellant has not indicated she has remarried, and there is no evidence that she has done so. Therefore, the Board finds that the third criteria has been satisfied, and it need not discuss the variety of exceptions otherwise. If a claimant was validly married to the Veteran on the date of death, cohabitated continuously from the date of marriage to the date of death, and is not remarried or falls under one of the exceptions for remarriage, then the spouse is considered a "surviving spouse" and is potentially eligible for DIC. However, a person who meets the definition of "surviving spouse" must also have been married to the deceased Veteran for the required period of time in order to be eligible for DIC benefits. 38 U.S.C. §§ 1304, 1318(c). As a threshold matter, if the claimant is a surviving spouse, in order to be eligible for DIC benefits pursuant to 38 U.S.C. § 1310, one of the following additional requirements must be satisfied. A surviving spouse of a Veteran who died after December 31, 1956, must have been married to the deceased Veteran: (1) within fifteen years after the Veteran's separation from the period of service in which the injury or disease causing the death of the Veteran was incurred or aggravated; or (2) for one year or more; or (3) for any period of time if a child was born to the surviving spouse and the Veteran before or during the marriage. 38 C.F.R. § 3.54(c). Here, the Veteran was separated from active service in February 1968, but the Veteran and the Appellant did not legally marry until July [REDACTED], 2014, and thus the first prong is not satisfied. The second alternative is also not satisfied because the Veteran and the Appellant married in July 2014, but the Veteran died less than one year later in October 2014. The third alternative is not satisfied because the Veteran and the appellant had no children together. See further VA 21-534 Application for DIC benefits, submitted February 2016. If the surviving spouse does not meet one of the above requirements, they are not eligible for DIC benefits, despite having achieved surviving spouse status. 38 U.S.C. § 1304. The Board has also considered the analysis in a claim for DIC benefits pursuant to 38 U.S.C. § 1318. Unlike 38 U.S.C. § 1310, 38 U.S.C. § 1318 allows for a surviving spouse to qualify for DIC benefits under its provisions in only two scenarios, eliminating the scenario in which the spouse married the Veteran within fifteen years of separation from the period of service where the Veteran incurred the disability resulting in death. 38 U.S.C. § 1304. Here, because the Appellant does not meet the criteria as a surviving spouse pursuant to 38 U.S.C. § 1318, as similarly discussed for 38 U.S.C. § 1310, the Appellant is not eligible for DIC benefits under either section. 38 U.S.C. § 1304. The Board thus finds that while the Appellant is correctly deemed the Veteran's surviving spouse as of the date of his death on October [REDACTED], 2014 and while the Board is truly sympathetic to the Appellant's situation, the Board must also find that she is not qualified for DIC benefits pursuant to 38 U.S.C. §§ 1310 or 1318 because she was not married to the Veteran for at least one year prior to his death. The Veteran and the Appellant became legally married on July [REDACTED], 2014 and were thus not married for the requisite one year prior to his death. Therefore, the Appellant's appeal has been rendered moot by virtue of her disqualification, and this appeal must be dismissed for lack of jurisdiction. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. And because the Appellant's claim is dismissed for lack of jurisdiction, the Board need not adjudicate the remaining claims that the Appellant has made as it relates to service connection for the cause of the Veteran's death, as well as entitlement to accrued benefits. In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claim brought by a survivor of the Veteran. 38 C.F.R. § 20.1106. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.