Citation Nr: 21031293 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-32 013 DATE: May 21, 2021 ORDER The claim for recognition of the Appellant as the Veteran's surviving spouse for the purpose of establishing basic eligibility for Department of Veterans Affairs (VA) death benefits is denied. The claim for entitlement to nonservice-connected burial benefits is denied. FINDING OF FACT The Veteran and the Appellant, W.M.R., were married in October 1976 and divorced in 1980; the Veteran died in October 2014. CONCLUSION OF LAW The criteria for recognition of the Appellant, W.M.R. as the Veteran's surviving spouse for purposes of entitlement to VA death benefits have not been met. 38 U.S.C. § 101, 103, 1541, 5107; 38 C.F.R. § 3.1, 3.22, 3.50, 3.54, 3.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1966 to October 1969. The Veteran died in October 2014. The Appellant is the Veteran's former spouse and has claimed surviving spouse status. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a December 2015 VA Regional Office (RO) decision denying the Appellant surviving spouse status and nonservice-connected burial benefits. The Appellant's Notice of Disagreement (NOD) was received in May 2016. The Statement of the Case was issued in May 2016, and the Appellant's VA Form 9, substantive appeal to the Board was received in June 2016. Of note, the Appellant requested a Board hearing and was scheduled to appear in September 2019. The Appellant failed to appear at the Board hearing and has not requested another hearing. As such, the Appellant's request for a hearing is deemed withdrawn. 1. Entitlement to recognition of the Appellant as the surviving spouse of the deceased Veteran for the purpose of basic eligibility for VA benefits. 2. Entitlement to nonservice-connected burial benefits. The Appellant contends that she is married to the Veteran and is entitled to VA death pension and/or Dependency and Indemnity Compensation (DIC) benefits and nonservice-connected burial benefits. By way of history, the Veteran reported that he was divorced from W.M.R. since 1980 on a September 1998 VA Form 21-526. In a December 1998 notice letter, the RO informed the Veteran that his monthly VA benefit amount was for a single veteran with no dependents. All subsequent notice letters likewise indicated that the Veteran was being paid as a single veteran with no dependents. The Veteran died in October 2014. His death certificate lists him as divorced. In October 2014, the Veteran's mother, A.R. submitted an application for burial benefits. In January 2015, A.R.'s claim was granted and she was paid $2000 for funeral costs. The January 2015 notice letter indicated that $2000 is the amount allowed for a veteran whose death is related to military service. The notice letter also explained that the grant was based on proof of the veteran's death, evidence establishing that the death was related to service, A.R.'s application and the bills documenting the funeral expenses. In June 2015, W.M.R. submitted a DIC claim. She indicated that she was the surviving spouse of the deceased Veteran and that their marriage ended when the Veteran died. She also indicated that she and the Veteran did not live continuously from the date of marriage to the date of death, and listed "infidelity 1988" as the cause of the separation. W.M.R. also filed an application for burial benefits. In September 2015, the Appellant submitted a claim for DIC based on in-service death, indicating that she has not lived continuously with the Veteran from the date of marriage to the date of the Veteran's death. For cause of separation, the Appellant indicated "infidelity don't know." In October 2015 correspondence, the RO notified the appellant that she needed to further explain the reason for why she and the late Veteran did not live together continuously. In a November 2015 response, the appellant indicated that she and the late Veteran attempted to reconcile, but to no avail. She also noted that he would stay with her at her dwelling from time to time, but that he made no contributions of support during those times. A December 2015 rating decision confirms that service connection for the cause of the Veteran's death and basic eligibility to Dependents' Educational Assistance (DEA) are warranted [for an eligible claimant]; however, the RO also determined that the appellant was not eligible to receive VA death benefits. In December 2015, the RO sent the Appellant two notice letters explaining why her claims were denied. In the first correspondence, the Appellant was notified that her claims were denied because she has not furnished requested documents explaining why she and the Veteran did not reside continuously. The second correspondence indicated that the Appellant's claim for nonservice-connected burial benefits is denied because total burial expenses were already paid. The Appellant requested to reopen her claim and attached two statements in support thereof. The first statement was from an individual named F.M. and indicates that they knew the Appellant and the Veteran since 1973, and that the statements in the attached letter true and correct. The second statement is from L.B. and indicates that they knew the Appellant and the Veteran since 1974. The second statement also indicates that the Veteran and the Appellant married in 1976, separated in approximately 1978, and that from that time to the Veteran's death they remained friends and married, and also lived together at the various places the Appellant stated in her letter to the VA. In February 2016, the RO denied the Appellant's request for reconsideration of her claim for death benefits. The February 2016 notice letter indicates that there is evidence that the Veteran and the appellant divorced in 1980. The Appellant's May 2016 NOD indicates that she and the Veteran were married in October 1976 and that things were fine until 1978 when the Appellant found out that the Veteran had a girlfriend. The Appellant indicates that at that point she moved out and stayed with her brother, but that reconciliation was discussed. The Appellant indicates that her and the Veteran remained friends and he would occasionally stay with her. The Appellant's NOD goes on to state that in 1979, a lawyer that she knew helped her with the divorce. The Appellant indicates that the lawyer that helped with the divorce has lost his license to practice, that everyone she's talked to has not heard of a divorce, and that she is unsure whether the divorce was legal. A "surviving spouse" is defined 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 a separation which was due to the misconduct of, or procured by, the veteran without the 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 to be the spouse of such other person. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). Under 38 C.F.R. § 3.54(b), death compensation may be paid to a surviving spouse who, with respect to date of marriage, could have qualified as a surviving spouse for death compensation under any law administered by VA in effect on December 31, 1957, or who was married to the veteran: (1) before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated; or (2) for one year or more; or (3) for any period of time if a child was born of the marriage, or was born to them before the marriage. In this case, the Veteran's September 1998 Application for Compensation indicates that he and the Appellant divorced in 1980 in Washington D.C. Additionally, the October 2014 Application for burial benefits submitted by the Veteran's mother lists the Veteran as divorced, and the Veteran's death certificate likewise lists him as divorced. The Appellant has indicated that she was married to the Veteran and that they remained friends and considered reconciliation. However, the Appellant also indicated that the parties divorced and there is no evidence that they remarried before the Veteran's death in October 2014. Based on the above, the Appellant cannot be found to be the Veteran's surviving spouse for purposes of VA benefits. The preponderance of the evidence shows that the Appellant and the Veteran were divorced in 1980 and thus the requirements of 38 C.F.R. § 3.50(b) have not been satisfied. The Appellant contends that her divorce may not have been valid because of subsequent misconduct by her attorney. However, there is no indication that the attorney's disbarment caused any issues with the divorce or that the divorce was invalid. Moreover, the late Veteran and his mother, consistently reported that the parties were divorced. This is confirmed by the Veteran's death certificate. The Appellant also contends that the parties remained friends and that the Veteran would sometimes stay with her. This does not satisfy the requirements of continuous cohabitation and does not show that the parties reconciled and remarried. In sum, the evidence shows that the parties separated and divorced. In other words, a divorce, as opposed to a separation due to misconduct or abuse by the Veteran ended their cohabitation. A valid, current marriage is a prerequisite to entitlement to death benefits, and there is no exception for divorces ended on account of abuse by the veteran. Haynes v. McDonald, 785 F.3d 614, 616 (Fed. Cir. 2015). As the Appellant is not the surviving spouse of the Veteran, there is no legal basis for a grant of her claim for any VA death benefits, including burial benefits. Therefore, the claims must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kuksova, Kseniya 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.