Citation Nr: 21027343 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-54 857 DATE: May 5, 2021 ORDER Eligibility for dependency and indemnity compensation (DIC) benefits is denied. FINDINGS OF FACT 1. The Veteran and the appellant were married in October 1965 and divorced in June 1985. 2. The Veteran died in October 2004. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran's surviving spouse have not been met. 38 U.S.C. §§ 101 (31), 103, 1102, 1304, 1541; 38 C.F.R. §§ 3.50, 3.53, 3.54, 3.205. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from September 1962 to August 1965, including service in the Republic of Vietnam; he died in October 2004. The appellant is his ex-spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In February 2021, the appellant testified before the undersigned at a hearing via videoconference. A transcript of her testimony has been associated with the claims file. Generally, the appellant alleges that she is entitled to DIC benefits because she was married to the Veteran when he returned home from Vietnam with post-traumatic stress disorder (PTSD). Because she had to "deal with all of his PTSD issues," she argues that she "should be allowed something for all that [she] went through to help him." For instance, she testified, he injured her right hand during a flashback. In its May 2017 decision, the RO stated that the appellant did not qualify as a surviving spouse for purposes of establishing eligibility to DIC benefits because she and the Veteran were divorced at the time of his death. A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive DIC benefits. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In order for a claimant to be recognized as a "surviving spouse," the evidence must demonstrate that the claimant was married to the veteran at the time of the veteran's death; lived continuously with the veteran 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 surviving spouse); and has not remarried or, after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of another person. 38 U.S.C. § 101(31); 38 C.F.R. § 3.50(b). Here, the evidence establishes that the Veteran and the appellant were married in October 1965 and divorced in June 1985. At her hearing, the appellant testified that the Veteran subsequently remarried. His death certificate confirms that at the time of his death in October 2004 he had remarried. As such, the appellant may not be considered the Veteran's surviving spouse for VA dependency and indemnity compensation purposes. To that end, the appellant has not disputed the validity of her divorce from the Veteran, but instead suggests that she is entitled to DIC benefits due to the negative impact of her ex-husband's service-connected PTSD on her life. However, a valid marriage between a claimant and a veteran is a basic requirement for recognition as a surviving spouse. Only a surviving spouse may qualify for pension, compensation, or DIC benefits. Here, on the other hand, the Veteran's death certificate indicates that his surviving spouse at the time of his death was P.W., not the appellant. The Board acknowledges the appellant's testimony that the Veteran injured her during a flashback and that she "caught the pure hell of him coming home" due to his PTSD symptoms. This could be interpreted as an argument that her divorce from the Veteran was due to his misconduct without any fault on her part. However, 38 C.F.R. § 3.53's exception to the requirement of continuous habitation only applies to situations where the parties are separated due to misconduct by a veteran. It does not apply where the parties are legally divorced at the time of the veteran's death. (Continued on the next page) Ultimately, the Board is bound by the law made applicable to it by statute, regulations, and the precedential decisions of the appellate courts, and it is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board is sympathetic to the appellant's testimony and lay statements regarding the Veteran's behavior during their marriage. However, based on the undisputed facts of this case, she and the Veteran were divorced at the time of his death. As the appellant cannot be considered the Veteran's surviving spouse for the purpose of establishing entitlement to DIC benefits, the appellant's claim for that benefit therefore must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law, and not the evidence, is dispositive, the appeal must be denied for failure to state a claim upon which relief may be granted); see also Rogers v. Derwinski, 2 Vet. App. 419, 422 (1992) (the benefit of the doubt doctrine is inapplicable because the issue on appeal involves the appellant's status as a claimant). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, Associate 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.