Citation Nr: 21071428 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-03 654 DATE: November 30, 2021 ORDER Entitlement to recognition as the Veteran's surviving spouse is denied. FINDINGS OF FACT 1. The Veteran died in April 2016. 2. Prior to his death, the Veteran and the appellant's marriage was terminated by divorce and the appellant and the Veteran did not enter into a valid marriage for at least one year prior to the Veteran's death and the appellant did not attempt to enter into a marriage with the Veteran that was invalid due to a legal impediment that was unknown to the appellant. CONCLUSION OF LAW The criteria for recognition as the Veteran's surviving spouse have not been met. 38 U.S.C. §§ 101, 103; 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53, 3.54, 3.102. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably on active duty in June 1972 to April 1979. He passed away in April 2016. The appellant is his former spouse. This matter comes before the Board of Veterans' Appeals (Board) from an August 2016 administrative decision of a Department of Veterans Affairs (VA) Regional Office that determined that the appellant was not entitled to surviving spouse benefits. The appellant and her close relative appeared and testified before the undersigned Veterans Law Judge at a July 2021 hearing. Entitlement to recognition as the Veteran's surviving spouse VA death benefits may be paid to a surviving spouse who was married to a veteran for: (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" is defined as a person who: (1) was the lawful spouse of a 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, except where there was a separation which was due to the misconduct of, or procured by, the veteran without fault of the spouse; and (3) has not remarried. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b)(1); Gregory v. Brown, 5 Vet. App. 108 (1993); VA O.G.C. Prec. Op. No. 3-2014. Status as a "surviving spouse" is a threshold question in VA death benefits cases. Here, the facts are not in dispute. The appellant contends that she should be entitled to VA death benefits based on her over 39-year marriage to the Veteran prior to his death. She and the witness at the hearing provided credible testimony detailing the progression of the marriage between the appellant and the Veteran that unfortunately deteriorated after the Veteran became dependent on various pain medications. The appellant explained that this addiction led to the Veteran becoming extremely violent and at points up to making death threats or pointing a gun at her. She also provided credible statements that the Veteran's addiction caused him to make extremely reckless financial decisions that put her on the brink of financial ruin. Due to the unsafe living environment, increasing threats of violence, and severe financial hardship the Veteran caused toward the end of his life, the appellant stated that she was forced to divorce him. However, she argues that an exception to the general rule barring a divorced spouse from receiving benefits should be made in her case due to her 39-year commitment as a supportive spouse to the Veteran and her continued efforts to support him continuing through his final days. Further, the appellant has made no contention that following her divorce and prior to her remarriage, that she entered into a common law marriage with the Veteran. This is significant because VA General Counsel has held that where an appellant entered a common law marriage, including without knowledge that such marriage was not recognized by the jurisdiction in which it took place, the legal impediment would not necessarily bar recognition of the marriage for VA purposes. See Lamour v. Peake, 544 F.3d 1317, 1322 (Fed. Cir. 2008) (citing VA Gen. Coun. Prec. 58-91 (June 17, 1991)). The Board has no reason to doubt the sincerity of the appellant or the witness who testified at the hearing and finds that they were credible in their recitation of the extreme hardships that the appellant faced leading up to her ultimate divorce from the Veteran. In making the instant adjudication, the Board does not wish there to be any doubt that it is in no way intending to minimize those hardships. However, the Board is similarly bound by VA's governing statutes and regulations as those provisions are interpreted by the United States Court of Appeals for Veterans Claims (Court) and the United States Court of Appeals for the Federal Circuit (Federal Circuit). These courts have held that the statutes authorizing death benefits simply do not allow for an individual divorced from the Veteran in question to be considered a "surviving spouse." In a case somewhat similar to the appellant's where an individual contended that a termination of her marriage to a veteran was caused only due to that veteran's abuse, the Federal Circuit directly addressed this question. See Haynes v. McDonald, 785 F.3d 614 (Fed. Cir. 2015). There, the Federal Circuit affirmed the Court's interpretation of 38 C.F.R. § 3.50(b)(1) in the decision on appeal to require that a veteran and claimed surviving spouse be actually married at the time of the veteran in question's death. Id. at 616. It held further that there was no exception to this marriage requirement when a veteran and a former spouse's marriage terminated in divorce due to abuse by the veteran. Id. The Board finds that this decision is applicable to the appellant's claim and directs the Board as a matter of law to find that she does not meet the criteria to be considered the Veteran's surviving spouse. The Board has also considered the appellant's suggestion that VA's regulations relating to separations due to no fault of the surviving spouse is applicable to her appeal. As she suggests, VA's regulations governing death benefits do include this language at 38 C.F.R. § 3.50(b)(1) that allows for an exception to the normal requirement that a surviving spouse continuously cohabitate with the veteran until the time of the veteran's death if the separation was due to the misconduct of, or procured by, the veteran without the fault of the spouse. Similar language further defining this continuous cohabitation exception is found at 38 C.F.R. § 3.53. However, these regulations only apply when the surviving spouse in question and the veteran remained married at the time of the veteran in question's death, as the Federal Circuit held in Haynes. As noted above, the Veteran and the appellant were not married at the time of his death. Therefore, the Board may not grant the appellant's claim on this basis, and this language does not provide an exception to the "clear statutory mandate and regulation" that the surviving spouse means someone who was the spouse of the veteran at the time of the veteran's death. Haynes, 785 F.3d. at 616. Finally, the Board notes that the appellant has also suggested in a September 2016 statement that she was in possession of survivor's benefits provided by the Social Security Administration (SSA) based on her long marriage with the Veteran. She contended in that statement that VA and SSA should come to the same conclusion that she is entitled to survivor's benefits as they are two governmental agencies. While the Board sympathizes with the apparent contradiction, VA and SSA have distinct statutory and administrative criteria for the distinct benefit systems these two agencies administer, and a determination of one is not inherently binding on the other. See e.g., Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Ultimately, it is VA's authorities that govern the Board's analysis. For the reasons described above, the Board finds that the appellant's divorce from the Veteran prior to his death prohibits the Board as a matter of law from granting her appeal. The claim is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Whitelaw, 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.