Citation Nr: 21024929 Decision Date: 04/27/21 Archive Date: 04/26/21 DOCKET NO. 16-11 904 DATE: April 27, 2021 ORDER Recognition of the appellant as the Veteran’s surviving spouse for the purpose of establishing basic eligibility for Department of Veterans Affairs (VA) dependency and indemnity compensation (DIC) benefits is denied. Recognition of the appellant as the Veteran’s surviving spouse for the purpose of establishing basic eligibility for accrued benefits is denied. Recognition of the appellant as the Veteran’s surviving spouse for the purpose of establishing basic eligibility for death pension benefits is denied. FINDINGS OF FACT 1. The appellant and the Veteran were married in June 1968 and divorced in November 2001. 2. The Veteran died in February 2003; the Veteran and the appellant were not married or cohabiting at the time of the Veteran’s death. CONCLUSIONS OF LAW 1. The criteria for recognition of the appellant as the Veteran’s surviving spouse for the purpose of establishing basic eligibility for VA DIC benefits have not been met. 38 U.S.C. §§ 101(3), 5107; 38 C.F.R. §§ 3.1, 3.50, 3.53. 2. The criteria for recognition of the appellant as the Veteran’s surviving spouse for the purpose of establishing basic eligibility for accrued benefits have not been met. 38 U.S.C. §§ 101(3), 5107; 38 C.F.R. §§ 3.1, 3.50, 3.53. 3. The criteria for recognition of the appellant as the Veteran’s surviving spouse for the purpose of establishing basic eligibility for VA death pension benefits have not been met. 38 U.S.C. §§ 101(3), 5107; 38 C.F.R. §§ 3.1, 3.50, 3.53. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1967 to September 1970. His decorations included the National Defense Service Medal. Unfortunately, he died in February 2003. The appellant seeks to establish status as his surviving spouse for the purpose of establishing basic eligibility for VA death benefits. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2015 determination issued by the VA Pension Management Center (PMC) in Milwaukee, Wisconsin. The appellant’s claim for DIC benefits was previously denied in December 2013. The PMC determined that the appellant was not entitled to benefits because she could not be recognized as the Veteran’s surviving spouse. The appellant did not appeal that decision within one year; nor was any new and material evidence received within that time. As a result, the December 2013 determination became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. Since that decision, new and material evidence has been associated with the claims file; in particular, statements from the appellant relating to the circumstances of her divorce from the Veteran. Accordingly, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 1. Recognition of the appellant as the Veteran’s surviving spouse for the purpose of establishing basic eligibility for VA DIC benefits is denied. 2. Recognition of the appellant as the Veteran’s surviving spouse for the purpose of establishing basic eligibility for accrued benefits is denied. 3. Recognition of the appellant as the Veteran’s surviving spouse for the purpose of establishing basic eligibility for death pension benefits is denied. The appellant seeks recognition as the Veteran’s surviving spouse for the purpose of establishing basic eligibility for VA death benefits, including DIC, accrued benefits, and death pension. A “surviving spouse” is defined as a person who was the spouse of a veteran at the time of the veteran’s death, who lived with the veteran continuously from the date of marriage to the date of the veteran’s death, and who has not remarried or has not since the death of the veteran lived with another person 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. The requirement that there must be continuous cohabitation from the date of marriage to the date of death of the veteran will be considered as having been met when the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. 38 C.F.R. § 3.53(a). In this case, there is no dispute that the Veteran and appellant were divorced at the time of the Veteran’s death in February 2003. See February 2003 Certificate of Death. Specifically, the record reflects that the Veteran and the appellant were married in June 1968 and divorced in November 2001. See June 1968 Marriage Certificate; November 2001 Judgment Entry for Dissolution of Marriage. In a November 2019 statement, the appellant acknowledged her divorce from the Veteran, but asserted that the divorce was due to the fault of the Veteran because of his abusive behavior. The Board acknowledges the appellant’s assertions to the effect that her divorce from the Veteran was due to his abusive behavior. However, the provision of law pertaining to whether a separation was due to the fault of a veteran, without any fault on the part of a surviving spouse, is applicable only to situations where the veteran and his or her spouse remained married until the time of the veteran’s death. See 38 C.F.R. § 3.53(a). Here, the appellant’s divorce from the Veteran terminated the marriage prior to the Veteran’s death. The law provides no exception to the definition of “surviving spouse” in 38 C.F.R. § 3.50(b)(1), which requires a valid marriage at the time of the veteran’s death, even in cases of abuse. See Haynes v. McDonald, 785 F.3d 614, 616 (Fed. Cir. 2015). While the Board is sympathetic to the appellant’s situation, the law is clear. The Board has no alternative but to deny recognition of the appellant as the Veteran’s surviving spouse. The appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Ragheb, 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.