Citation Nr: 21072281
Decision Date: 12/02/21	Archive Date: 12/02/21

DOCKET NO. 18-29 737
DATE: December 2, 2021

REMANDED

Entitlement to recognition as the Veteran's surviving spouse for the purposes of entitlement to Department of Veterans Affairs (VA) death benefits is remanded.

REASONS FOR REMAND

The Veteran had active service from June 1965 to June 1967. He died in August 2013. The Appellant requests benefits as a surviving spouse.

This matter comes to the Board of Veterans' Appeals (Board) from a November 2017 notification of a decision of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which denied the Appellant's claims of entitlement to death pension and Dependency and Indemnity Compensation (DIC). 

The Appellant contends that she filed for divorce from the Veteran but it was never finalized. In June 2018, she submitted a witness statement in support of her contentions. In June 2020, the AOJ obtained court records from Ohio. They show that two divorce cases between the Appellant and the Veteran were dismissed for want of prosecution, one in 1978 and the other in 1980.

The claims file also contains written statements from the Veteran and a Veterans Service Officer (VSO) dated in 2001 indicating that the Veteran had divorced the Appellant years before. A June 2001 Declaration of Status of Dependents from the Veteran indicates that he divorced the Appellant in April 1995 and remarried that same month. The VSO indicated that the Veteran had been a resident of Florida since approximately 1986 and obtained his 1995 divorce while living there. The Veteran submitted a copy of his marriage certificate dated in April 1995 indicating that he had remarried in Florida. Because the AOJ obtained court records from Ohio but has not attempted to obtain a copy of any divorce decree from Florida, a remand is required. 

The matters are REMANDED for the following action:

1. Request any records regarding a divorce involving the Veteran and the Appellant from the appropriate state agency in Florida located where the Veteran's residence was while he lived there, including the Brevard County Clerk of the Court and the Gulf County Clerk of Court. The request should include a request for copies of any petition for dissolution of marriage, judgments, decrees, dismissals, post-judgment motions, and post-judgment orders. If the records cannot be obtained, then the Appellant must be notified and afforded an opportunity to respond.

2.  Thereafter, readjudicate the appeal.

 

 

MICHAEL T. OSBORNE

Acting 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.