Citation Nr: 21028513 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-17 762 DATE: May 11, 2021 ORDER Entitlement to death pension and accrued benefits, to include recognition of the Appellant as the surviving spouse, is denied. Entitlement to dependency indemnity compensation (DIC) is denied. FINDINGS OF FACT 1. The Veteran died in May 2015. 2. At the time of his death, the Veteran and the Appellant were divorced. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to death pension and accrued benefits, to include recognition of the Appellant as the surviving spouse, have not been met. 38 U.S.C. §§ 101(3), 103, 1304, 5121; 38 C.F.R. §§ 3.50, 3.52, 3.53, 3.1000. 2. The criteria for establishing entitlement to DIC have not been met. 38 U.S.C. §§ 101(3), 103, 1304, 5121; 38 C.F.R. §§ 3.50, 3.52, 3.53, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1968 to September 1970. He died in May 2015. The Appellant claims recognition as his surviving spouse. This matter comes before the Board of Veterans Appeals (Board) on appeal from a November 2015 notification letter issued by a Department of Veterans Affairs (VA) Regional Office (RO). DIC and Death Pension The Appellant contends that she is entitled to DIC and death pension benefits. The Appellant acknowledges that she and the Veteran were divorced at his time of death but stated that she had been married to the Veteran for a long time and feels that the VA owes her money. Additionally, in her April 2016 VA Form 9, the Appellant stated that she and the Veteran divorced after 15 years because of his disability. The Board has reviewed all of the evidence of record with a focus on the evidence relevant to this appeal. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate her claim and what the evidence of record shows, or fails to show, with respect to her claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board also notes that the resolution of the above-noted issues involves the application of identical facts to congruent laws, and as such, for the sake of judicial economy and brevity the Board will address these issues together. When a veteran dies, the surviving spouse may be eligible for VA death benefits, to include DIC, death compensation, and death pension. 38 U.S.C. §§ 1121, 1310, 1541; 38 C.F.R. § 3.50(a). Consequently, surviving spouse status is a threshold requirement for both DIC and death pension benefits. Upon the death of a veteran, certain persons shall be paid periodic monetary benefits to which the veteran was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000(a). VA law provides that persons eligible for accrued benefits, in descending order, are: (i) the veteran's spouse; (ii) his or her children in equal shares; (iii) his or her dependent parents or the surviving parent; or (iv) the person who bore the expense of the last sickness or burial of the payee, but only as much as necessary for reimbursement of such expenses. 38 C.F.R. § 3.1000(a). The Appellant does not contend that she is the Veteran's child or parent; rather, she reports being the Veteran's widow/surviving spouse. The facts in this case are not in dispute. The Appellant herself acknowledged being granted a divorce from the Veteran as noted above. Evidence prior to the Veteran's death shows that he knew them to be divorced. He reported to the VA in a February 1997 statement that the Appellant and he were separated and had filed for divorce. Further a March 1998 notification letter shows that the Veteran's payments were being reduced due to a change in his marital status. His May 2015 death certificate also lists the Veteran as being divorced. Based on the above, the Board concludes that entitlement to DIC, death pension, and accrued benefits must be denied. The law clearly requires that a surviving spouse be married to a veteran at the time of his death in order to be considered the surviving spouse. The evidence shows, as admitted by the Appellant, that they were divorced at the time of the Veteran's death in May 2015. As the Appellant was not married to the Veteran at the time of his death, she is not deemed his surviving spouse for the purpose of establishing entitlement to certain VA benefits. 38 C.F.R. §§ 3.1(j), 3.50. The Board is sympathetic to the Appellant, however, in this case, it is the law that is dispositive of the claim as the Appellant does not meet the legal criteria to establish status as the deceased Veteran's surviving spouse for purposes of VA benefits. Accordingly, the Board is left with no recourse but to deny as a matter of law the claim for DIC and death pension benefits. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.