Citation Nr: 21074541 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 13-13 829 DATE: December 15, 2021 ORDER The appellant is not recognized as the Veteran's surviving spouse for death pension purposes. FINDING OF FACT The appellant's second marriage was not annulled or found to be void and ended after November 1, 1990. CONCLUSION OF LAW The criteria for recognizing the appellant as the Veteran's surviving spouse for death pension purposes are not met. 38 U.S.C. §§ 1155, 1311, 1541, 5121; 38 C.F.R. §§ 3.1, 3.3, 3.23, 3.50, 3.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to August 1969. He died in February 1980. The case is on appeal from a November 2012 decision. The Board notes that the appellant requested a Board hearing in a VA Form 9 submitted in April 2013. The appellant was scheduled for the hearing in November 2021, but she did not attend. Thus, such request is considered withdrawn. See 38 C.F.R. § 20.704(d). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Whether the appellant is the Veteran's surviving spouse for death pension purposes. Legal Criteria Surviving spouses of veterans are eligible to received death pension benefits if they meet all requirements. See 38 U.S.C. §§ 1522, 1541; 38 C.F.R. §§ 3.3, 3.23. "Surviving spouse" means a person of the opposite sex whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the veteran at the time of the veteran's death and: (1) 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; and (2) Except as provided in 38 C.F.R. § 3.55, has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50. Remarriage of a surviving spouse is not a bar for benefits to a surviving spouse if the marriage was void or was annulled by a court having basic authority to render annulment decrees, unless it is determined by the Department of Veterans Affairs that the annulment was obtained through fraud by either party or by collusion. 38 C.F.R. § 3.55. In addition, the remarriage is not a bar for pension benefits to a surviving spouse if, on or after January 1, 1971, remarriage of a surviving spouse was terminated prior to November 1, 1990, or terminated by legal proceedings commenced prior to November 1, 1990, by an individual who, but for the remarriage, would be considered the surviving spouse, if the subsequent marriage was terminated by death or was dissolved by a court with basic authority to render divorce decrees, unless VA determines that the divorce was secured through fraud by the surviving spouse or by collusion. Id. Analysis The appellant is seeking a death pension. In April 2012, she submitted a marriage certificate that shows she married the Veteran in February 1980 and a death certificate that shows he died later that month. She also submitted a pension claim form in which she reported remarrying in March 1981 and that the second marriage ended with her second husband's death in June 1998. In December 2013, the appellant submitted a death certificate that shows her second husband died in June 1998. The Board finds that the claim must be denied. In this regard, the appellant remarried after the Veteran's death. In addition, her second marriage ended due to the death of her husband after November 1, 1990. See 38 C.F.R. § 3.55. Therefore, as the appellant's second marriage was not annulled or found to be void and ended after November 1, 1990, recognition of the appellant as the Veteran's surviving spouse for death pension purposes is not warranted. R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield 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.