Citation Nr: 21041305 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 14-28 877 DATE: July 8, 2021 ORDER Entitlement to nonservice-connected death pension benefits, to include recognition of the appellant as the Veteran's surviving spouse, is denied. FINDING OF FACT The Veteran and the appellant were married in August 1993 and divorced in 1996; the record does not show that they remarried at any time between their divorce and the Veteran's death in January 2011. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected death pension benefits, to include recognition of the appellant as the Veteran's surviving spouse, have not been met. 38 U.S.C. §§ 101, 103, 1541; 38 C.F.R. §§ 3.1, 3.3, 3.12a, 3.50, 3.54, 3.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the New York Army National Guard from 1984 to 2007, which included periods of service from August 1984 to February 1985 (initial active duty for training) and from March 2004 to March 2006 (ordered to active duty in support of Operation Iraqi Freedom) before assignment to the Retired Reserve. See DD 214s and associated orders. He died in January 2011, and the appellant is claiming entitlement to death pension benefits as his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 decision by the Department of Veterans Affairs (VA). A hearing was held before the undersigned Veterans Law Judge in November 2014. A transcript of the hearing is of record. In a June 2018 decision, the Board denied the appellant's claim, determining that she did not meet the criteria for recognition as the Veteran's surviving spouse for purposes of the claimed benefits. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In May 2019, the Court granted a Joint Motion for Remand (Joint Motion) filed by the parties the month before and remanded the claim to the Board. The Board remanded the case for further development in March 2020 and November 2020. The requested development was completed, and the case has since returned to the Board for appellate review. Law and Analysis VA's notification and assistance duties are not applicable in this case because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). Resolution of the claim is wholly dependent on the application of the laws and regulations related to the eligibility criteria for death pension benefits, including recognition as a surviving spouse as defined for VA purposes. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 23, 2004). The surviving spouse of a qualified veteran is eligible to receive death pension benefits if, among other things, the surviving spouse was married to the veteran: (1) for one year or more; (2) for any period of time if a child was born of the marriage, or was born to them before the marriage; or (3) prior to January 1, 1957, if the veteran served during World War II. 38 U.S.C. § 1541; 38 C.F.R. §§ 3.3(b)(4), 3.12a, 3.54. A "spouse" is defined as a person whose marriage to a veteran is valid under the law of the place where the parties resided at the time of marriage or the law of the place where the parties resided when the right to benefits accrued. 38 U.S.C. § 103(c); 38 C.F.R. §§ 3.1(j), 3.50. A "surviving spouse" is defined in relevant part as a person: (1) whose marriage to a veteran was valid under the law of the place where the parties resided at the time of marriage or the law of the place where the parties resided when the right to benefits accrued; (2) who was the spouse of the veteran at the time of the veteran's death; (3) who lived with the veteran continuously from the date of marriage to the date of the veteran's death (i.e., continuous cohabitation) 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 (4) who, except as provided in 38 C.F.R. § 3.55, has not remarried or has not since the death of the veteran (and after September 19, 1962) 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). Photocopies of documents necessary to establish birth, death, marriage, or relationship under the provisions of 38 C.F.R. §§ 3.205 through 3.215 are acceptable as evidence if VA is satisfied that the copies are genuine and free from alteration. 38 C.F.R. § 3.204(c). The appellant has the burden to show status as a surviving spouse by a preponderance of the evidence to have standing. See Colon v. Brown, 9 Vet. App. 104, 107-08 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the criteria for recognition as the surviving spouse of the Veteran for purposes of death pension benefits have not been met. The appellant has contended that she is entitled to death pension benefits as the Veteran's surviving spouse because information in the claims file indicating that they were divorced is not accurate. She has acknowledged that she did not live continuously with him from the date of their marriage until his death, but she has indicated the reason for their separation was that he abandoned her. See August 2012 claim; November 2014 Bd. Hrg. Tr. The record indicates that the agency of original jurisdiction (AOJ) accepted the appellant's August 1993 marriage to the Veteran as valid on readjudication of the case in the July 2014 statement of the case, but determined that she did not have the necessary standing for entitlement to the benefits sought because they were divorced at the time of the Veteran's death. The marriage documents of record also show that the Veteran and the appellant were married as reported. Nevertheless, the Board finds that the most probative evidence shows that the Veteran and the appellant divorced in 1996. In response to the April 2019 Joint Motion, the Board remanded the case in March 2020 and November 2020 to obtain additional information regarding the circumstances of their reported separation, also noting that the record contained equivocal evidence as to whether they were divorced. The AOJ received a January 2021 response from the Kings County Clerk's Office containing an electronic court database printout from the New York State Unified Court System. The case detail information in that printout shows that the Veteran and the appellant were the parties to divorce proceedings initiated in 1995, resulting in the grant of an uncontested divorce in the Bronx Supreme Court in early 1996. In other words, the electronic court database printout confirms that the Veteran and the appellant were actually divorced in 1996, consistent with the Veteran's various reports during his lifetime that he was divorced, as well as the notation of such on his death certificate. The record also does not show that they remarried at any time between their divorce and the Veteran's death in January 2011. See, e.g., VA treatment records from October 2005, March 2007, August 2008, and October 2010; service examination reports from July 1996, March 2003, and March 2005 (listing next of kin or emergency contact as other individuals besides appellant, including his mother). The appellant and the Veteran's sister did not respond to the AOJ's requests for additional information in this regard. See April 2020, November 2020, and January 2021 letters. Moreover, the documentation of the divorce in the court record affects the credibility of the appellant's statements as to the history of her relationship with the Veteran. The Board recognizes the appellant's reported financial difficulties and acknowledges her family history with the Veteran; however, she does not meet all of the requirements for recognition as a surviving spouse for purposes of death pension benefits based on the foregoing information. See also, e.g., Martin v. McDonough, 2020-1786, 2021 U.S. App. LEXIS 13313 (Fed. Cir. March 5, 2021) (determining that marriage at the time of death is a necessary predicate for a spousal death benefit claim, regardless of the reason for the divorce) (internal quotations and citation omitted); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge [i.e., nonprecedential] decisions may be relied upon for any persuasiveness or reasoning they contain). As such, she has not established that she has the necessary standing to claim the benefit at issue, and the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Postek, 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.