Citation Nr: 21070655 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-38 897 DATE: November 24, 2021 ORDER Entitlement to recognition as the Veteran's surviving spouse for the purpose of establishing eligibility for Department of Veterans Affairs death benefits is denied. FINDINGS OF FACT 1. The competent evidence of record demonstrates that the Appellant and the Veteran married in 1984 and divorced in 2001. 2. The Veteran died in May 2011. CONCLUSION OF LAW The criteria for recognition of the Appellant as the Veteran's surviving spouse for the purpose of establishing entitlement to VA death benefits are not met. 38 U.S.C. §§ 101, 103, 1304, 1310, 1311, 1541; 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.54, 3.205, 3.206. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1969 to April 1972. The Veteran died in May 2011. The Appellant is the Veteran's former spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 decision. The Appellant requested a hearing before a Veterans Law Judge. See April 2017 VA Form 21-4138, Statement in Support of Claim. The Appellant was informed of the date, time, and location of the hearing in an August 2021 letter. Without explanation, the Appellant did not attend the hearing, nor did she request to reschedule the hearing. Accordingly, the Appellant's hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e). Entitlement to recognition as the Veteran's surviving spouse for the purpose of establishing eligibility for Department of Veterans Affairs death benefits is denied. The Appellant applied for death pension (VA death benefits) in November 2014. The Appellant maintains that she should be considered the Veteran's surviving spouse. VA death benefits may be paid to a surviving spouse who was married to the Veteran: (1) one year or more prior to the Veteran's death, or (2) for any period of time if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C. §§ 1102, 1304, 1541; 38 C.F.R. § 3.54. The term "surviving spouse" means a person of the opposite sex who was the spouse of the Veteran at the time of the Veteran's death, and 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 in the case of temporary separations) and who has not remarried or (in cases not involving remarriage) 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 U.S.C. § 101(3); 38 C.F.R. § 3.53. The claims folder does not contain a Marriage Certificate between the Appellant and Veteran or other official document demonstrating their divorce. The claims folder contains written statements and other documentary evidence showing that the Appellant and Veteran were married in 1984 and divorced in 2001. The claims folder also demonstrates that the Veteran married a different woman in January 2004. See State of Tennessee Marriage Certificate. A March 2011 private treatment record from Roane Medical Center states that the Veteran is divorced and lives by himself and he has support family members who are with him right now, an aunt and a cousin. The Veteran's Tennessee Department of Health Certificate of Death shows his marital status was divorced and did not list a spouse at the time of his death in May 2011. The Appellant does not dispute that she and the Veteran were divorced at the time of his death. However, in a written statement included in a May 2011 VA Form 21-534, Application for Dependency and Indemnity Compensation, Death and Pension and Accrued Benefits by a Surviving Spouse or Child, she stated the Veteran became addicted to drugs during their marriage and he transmitted diseases to her. The Appellant stated that she did not want to divorce the Veteran and that during an order of protection hearing, she was ordered to enter into a divorce by a judge. See April 2015 Written Statement. The Appellant also provided that she cohabitated with the Veteran for two years prior to his death while they were divorced, that she was the sole means of support and care for him, and that they were in the process of renewing their vows and getting re-married. See July 2016 VA Form 9, Appeal to the Board of Veterans' Appeals. Based on the evidence, the Appellant is not entitled to be recognized as the Veteran's surviving spouse for VA death benefits purposes. The evidence, including the death certificate and statements from the Appellant and the Veteran prior to his death, show that she and the Veteran were divorced at the time of his death in May 2011. Although the Appellant has introduced evidence concerning her lack of fault in her divorce from the Veteran and the Veteran's reported drug use during their marriage, that evidence does not factor into the determination of whether she is entitled to be recognized as the Veteran's surviving spouse. To be entitled to benefits, the "surviving spouse" must meet the requirements of 38 C.F.R. § 3.1(j), i.e., a valid marriage under the law of the place where the parties resided. At the time of the Veteran's death, there was no valid marriage from which the parties could have had a separation, due to their divorce in 2001. Therefore, the Appellant has not satisfied 38 C.F.R. § 3.50(b) as she was not the spouse of the Veteran at the time of the Veteran's death. Concerning the Veteran's alleged drug abuse, it is true that VA regulation requires a "surviving spouse" to continuously cohabitate with the Veteran except in cases of marital separation due to misconduct of the Veteran and without fault of the spouse. 38 C.F.R. § 3.50(b). Thus, had there been a separation during the marriage due to the Veteran's alleged drug abuse without fault of the Appellant, the requirement of continuous cohabitation would have been fulfilled. However, because the Appellant was not the spouse of the Veteran at the time of his death, continuous cohabitation is not at issue. (Continued on the next page) Based on the law and regulations governing this appeal, the Appellant may not be recognized as the Veteran's surviving spouse. Thus, the Appellant has no legal basis to claim death pension. The Board has no discretion in this matter. 38 U.S.C. §§ 1304, 1310(a), 1541(a), 5121; 38 C.F.R. §§ 3.3(b)(4), 3.54(c), 3.1000. Accordingly, given that the law is dispositive and that the pertinent facts in the record are not in dispute, the Appellant's claim for death pension must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean 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.