Citation Nr: 21073816
Decision Date: 12/10/21	Archive Date: 12/10/21

DOCKET NO. 17-49 468
DATE: December 10, 2021

ORDER

Recognition as the surviving spouse of the Veteran for the purpose of entitlement to Dependency and Indemnity Compensation (DIC) benefits is denied.

FINDING OF FACT

The preponderance of the evidence indicates that the appellant was not the spouse of the Veteran at the time of the Veteran's death.

CONCLUSION OF LAW

The criteria for recognition as the surviving spouse of the Veteran for the purpose of entitlement to DIC benefits have not been met. 38 U.S.C. §§ 101 (3), 1310; 38 C.F.R. §§ 3.1 (j), 3.50, 3.52, 3.53.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had service from September 1965 to June 1966. The Veteran passed away in March 2016. The appellant is his ex-spouse.

This matter was appealed to the Board of Veterans Appeals (Board) from a December 2016 rating decision. 

The appellant testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in September 2021. A transcript of that hearing has been associated with the claims file.

Recognition as the surviving spouse of the Veteran for the purpose of entitlement to DIC benefits.

"Marriage" means a marriage 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. 38 C.F.R. § 3.1 (j). A "surviving spouse" means a person of the opposite sex whose marriage to the veteran meets the requirements of section 3.1(j) of VA regulation and who was the spouse of the veteran at the time of the veteran's death and who (1) 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; and (2) except as provided in Sec. 3.55, has not remarried. 38 C.F.R. § 3.50 (b).

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During the September 2021 hearing the appellant indicated that her and the Veteran were divorced at the time of the Veteran's death. The regulations governing DIC benefits are unambiguous in that a "surviving spouse" means a person of the opposite sex whose marriage to the veteran meets the requirements of section 3.1(j) of VA regulations and who was the spouse of the veteran at the time of the veteran's death. 38 C.F.R. § 3.50 (b).

Consequently, the Board finds that the appellant is not the surviving spouse of the Veteran as she did not have a valid marriage to the Veteran at the time of his death. Therefore, her claim is denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit).

 

 

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Kyle McKone

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.