Citation Nr: 21021192 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-13 155 DATE: April 12, 2021 ORDER Entitlement to recognition as the surviving spouse of the decreased Veteran, for the purpose of VA compensation and pension benefits, is denied. FINDINGS OF FACT 1. The appellant and the Veteran were married in August 1974 and divorced in September 1994. 2. The Veteran died in November 2012. 2. There is no evidence that, after their divorce in September 1994, the Veteran and the appellant ever remarried or otherwise held themselves out to others as husband and wife. CONCLUSION OF LAW The appellant may not be recognized as the surviving spouse of the Veteran for the purpose of VA compensation and pension benefits. 38 U.S.C. §§ 101, 103, 503, 1304, 1318, 5103, 5103A, 7104; 38 C.F.R. §§ 3.1, 3.3, 3.5, 3.50, 3.52, 3.53, 3.55. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty concurrently from June 1955 to March 1971, with additional service from January 1975 to March 1977. He passed away in November 2012. The appellant is his former spouse. When a veteran dies his or her surviving spouse may be eligible to receive VA death benefits, to include Dependency and Indemnity Compensation (DIC) benefits, death compensation, death pension, and accrued benefits. See 38 U.S.C. §§ 1121, 1310, 1541; 38 C.F.R. § 3.50 (a). Status as surviving spouse is a threshold requirement for both DIC and death pension benefits. 38 U.S.C. § 101 (3) defines surviving spouse as “a person... who was the spouse of a 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 separation which was due to the misconduct of, or procured by, the veteran without fault of the spouse) 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 as the spouse of such other person.” 38 C.F.R. § 3.50 defines surviving spouse in substantially identical language. The regulation also defines spouse as a person, “whose marriage to the veteran meets the requirements of [38 C.F.R.] § 3.1(j)...” According to § 3.1(j), Marriage means “a marriage valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued.” In this case, the evidence of record indicates that the Veteran and appellant were married in August 1974 and divorced in September 1994. There is no evidence that the appellant and Veteran were remarried before his death in November 2012. The appellant does not dispute these facts. While the August 1974 marriage certificate proves that the Veteran and appellant were once legally married, the September 1994 divorce decree confirms they were legally divorced prior to the November 2012 date listed on the Veteran’s death certificate. Thus, the appellant does not satisfy the second required criteria to be recognized as the surviving spouse of the Veteran. See 38 C.F.R. § 3.50 (b). The evidence of record shows that the continuous habitation of the appellant and the Veteran was terminated by divorce, as opposed to a separation due to misconduct or abuse by him. See, e.g., 38 C.F.R. § 3.53. A valid, current marriage is a prerequisite to entitlement to death benefits. Although the appellant contends that she is entitled to DIC and death pension benefits on account of her 20 years of marriage to the Veteran prior to their divorce, the fact remains that she is not the surviving spouse of the Veteran, and so there is no legal basis for a grant of her claim for any VA death benefits, including DIC, death pension and accrued benefits. Therefore, this claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Kalisse Anderson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Collins, 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.