Citation Nr: 21024801 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 18-47 477 DATE: April 26, 2021 ORDER The appeal as to whether the appellant is entitled to concurrent Dependency and Indemnity Compensation (DIC) benefits based on the service of two veterans is denied. FINDING OF FACT The appellant receives DIC benefits based on the service of her first husband, A.C., and has not elected to instead receive benefits from the Veteran. CONCLUSION OF LAW The appellant may not receive concurrent DIC benefits based on the service of two veterans. 38 U.S.C. §§ 1310, 1316; 38 C.F.R. § 3.700. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1973 to June 1986 and from October 1986 to October 1993, to include service in Southwest Asia. The Veteran died in May 2018 and the appellant is his widow. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision by a Department of Veterans Affairs (VA). In June 2020, the appellant testified before the undersigned Veterans Law Judge. In general, DIC benefits are payable to the surviving spouse, child, or parent of a Veteran who died of a service-connected cause after December 31, 1956. 38 C.F.R. § 3.5. “Surviving spouse” is defined as a person of the opposite sex who was validly married to the Veteran at the time of death; who lived with the Veteran continuously from the date of marriage to the date of death (except where there was a separation which was due to the misconduct of, or procured by, the Veteran and without the fault of the spouse); and who has not remarried or 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 U.S.C. § 101(3); 38 C.F.R. § 3.50. There are exceptions where remarriage of a surviving spouse will not bar VA benefits, including remarriage after the age of 57. 38 C.F.R. § 3.55(a)(3), (10). Pursuant to 38 C.F.R. § 3.700(b), the receipt of pension, compensation, or DIC by a surviving spouse because of the death of any veteran shall not bar the payment to the surviving spouse of pension, compensation, or DIC because of the death or disability of any other veteran; however, other than insurance, concurrent benefits under laws administered by VA may not be authorized to a surviving spouse by reason of the death of more than one veteran to whom the surviving spouse has been married. The surviving spouse may elect to receive benefits based on the death of one such spouse and the election places the right to benefits based on the deaths of other spouses in suspense. The suspension may be lifted at any time by another election based on the death of another spouse. Benefits payable in the elected case will be subject to prior payments for the same period based on the death of the other spouse where there is entitlement in the elected case prior to date of receipt of the election. Id.; 38 U.S.C. § 5304. By way of background, the record reflects that the appellant was previously married to another veteran, A.C., who unfortunately died during his active duty service. The appellant has received DIC benefits based upon A.C.’s death for many years. She testified that she met the Veteran in this case in 1997, but waited to marry him until 2015, after she reached the age of 57, so that her DIC benefits would not be terminated. The evidence reflects that she was married to the Veteran at the time of his death in 2018. She applied for DIC benefits and service connection for the cause of the Veteran’s death was granted in a June 2018 rating decision. However, the June 2018 notice letter issued in conjunction with the decision explained that she was not entitled to additional benefits; rather, she was told she could retain her benefits from her marriage to A.C. or elect to receive benefits from her marriage to the Veteran in this case. Preliminarily, the Board notes that there is no factual dispute in this case. In that regard, the appellant is the Veteran’s surviving spouse and the evidence demonstrates that she was married to the Veteran at the time of his death. Service connection for the cause of the Veteran’s death has been awarded. As such, it is not in dispute that the appellant is entitled to DIC benefits based on the Veteran’s service. Instead, the question for resolution by the Board is whether the appellant may receive concurrent DIC benefits based on the service of both of her husbands. The appellant’s primary argument is that, in the context of 38 C.F.R. § 3.700(b)(1), the phrase “may not” is permissive rather than imperative, and allows the Board discretion in deciding whether or not she may receive concurrent benefits for both of her spouses. Specifically, § 3.700(b)(1) provides that “other than insurance, concurrent benefits under laws administered by VA may not be authorized to a surviving spouse by reason of the death of more than one veteran to whom the surviving spouse has been married” (emphasis added). The Board will first look to the plain text of the regulation. In that regard, the Board notes that “may” is typically defined as implying a “choice to act or not, or a promise of a possibility, as distinguished from ‘shall’ which makes it imperative.” The People’s Law Dictionary, https://legal-dictionary.thefreedictionary.com/May, accessed April 14, 2021. However, it is also clear that “in statutes, and sometimes in contracts, the word ‘may’ must be read in context to determine if it means an act is optional or mandatory, for it may be an imperative.” Id. That is, in the legal context, “may” or “may not” is often intended as an imperative. See also, e.g., Oregon Laws, https://www.oregonlaws.org/glossary/definition/may_not, accessed April 14, 2021 (“‘May not’ and ‘shall not’ are equivalent expressions of an absolute prohibition.”). The Board finds that is the case with respect to this regulation. The plain meaning is clear in its intent to lay out when concurrent benefits can and cannot be awarded, as the regulation specifically provides for any exceptions. The Board has also looked to the Federal Register to determine the legislative intent behind this regulation. Looking to the note published in the Federal Register at the time this part of the regulation was amended in 1975, it is clear that “may not” was intended to be imperative. Specifically, the note reads “when there is entitlement to benefits based on the death of more than on veteran spouse, the widow or widower must elect which benefit he or she will receive . . . subject to any prior payments in the case of the other spouse.” 40 Fed. Reg. 59346 (December 23, 1975) (emphasis added). While the text of the Federal Register is not itself legally binding, the Board finds this explanation highly probative as it demonstrates how the regulation was intended to operate. Even if the Board were to accept the appellant’s interpretation of “may not” and attempt to determine whether the appellant should be awarded concurrent DIC benefits, the regulation at issue provides no guidance as to factors that may be considered in conducting this type of analysis, nor is there any case law providing such guidance. In that regard, VA benefits are typically designed to be applied uniformly to veterans and other beneficiaries. See, e.g., 38 C.F.R. § 4.1 (rating schedule represents the average impairment in earning capacity resulting from disability rather than actual disability). As such, there is no equitable way to administer the regulation as the appellant suggests – whether based on the particular circumstance of an appellant’s marriages, income, or other factors. Simply leaving whether an appellant may receive concurrent benefits up to the discretion of the Board without further guidance would surely result in disparate treatment. Beyond her bare argument that “may not” is intended to be permissive, the appellant has essentially asserted that it is unfair that she should be forced to choose to receive only one benefit. While the Board is sympathetic to her argument and acknowledges that she waited until she was 57 to remarry under the belief that she could receive simultaneous DIC benefits upon the death of her second husband, this essentially amounts to a plea for equitable relief. However, matters of equitable relief are only within the discretion of the Secretary of VA. The Board does not have the authority to award equitable relief. 38 U.S.C. § 503 (2012); Darrow v. Derwinski, 2 Vet. App. 303 (1992). In short, while the Board thanks the appellant for the distinguished service of both of her husbands, it is bound by the controlling legal authority set forth above and has no authority to grant the requested relief. 38 U.S.C. §§ 503, 7104(c); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As such, the appellant’s appeal must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430, (1994). Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. D. Bruce, 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.