Citation Nr: 22057167 Decision Date: 10/11/22 Archive Date: 10/11/22 DOCKET NO. 15-32 145 DATE: October 11, 2022 ORDER Entitlement to recognition as the Veteran's surviving spouse for the purpose of establishing basic eligibility for nonservice-connected death pension benefits is denied. FINDINGS OF FACT 1. The Appellant and the Veteran were married in September 1980. 2. The Veteran died in September 2000. 3. The Appellant and the Veteran did not live together continuously from the date of marriage to the date of the Veteran's death. CONCLUSION OF LAW The criteria for entitlement to recognition as the Veteran's surviving spouse for purposes of eligibility for nonservice-connected death pension benefits are not met. 38 U.S.C. §§ 101 (3), 103, 1541; 38 C.F.R. §§ 3.1 (j), 3.50. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from September 1950 to October 1953. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant requested a hearing before the Board. A hearing was scheduled for February 2019; however, the Appellant did not attend the hearing and did not provide good cause for not attending. As such, the Board finds the Appellant's request for a hearing is withdrawn. Entitlement to recognition as the Veteran's surviving spouse for the purpose of establishing basic eligibility for non-service connected death pension benefits. The Appellant seeks entitlement to non-service connected death pension benefits. She believes she is entitled to benefits as the spouse of the Veteran. VA dependency and indemnity compensation (DIC) and death pension benefits may be paid to the surviving spouse of a veteran in certain circumstances. 38 U.S.C. §§ 1310, 1541(a). Except as provided in 38 C.F.R. § 3.52, the term "surviving spouse" means a person whose marriage to a veteran meets the requirements of 38 C.F.R. § 3.1 (j) and who was the spouse of the veteran at the time of the veteran's death and (1) 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 (2) 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 C.F.R. § 3.50 (b). The person claiming to be the spouse of a veteran has the burden to come forward with evidence of a valid marriage under the laws of the appropriate jurisdiction. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The threshold question that must be addressed in any claim for VA benefits is whether the person seeking the benefit is a proper claimant for the benefit sought. If the appellant is not established as a proper claimant, the claim can proceed no further. The appellant has the burden to establish his or her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). A marriage certificate confirms the Appellant and the Veteran were married in September 1980. A certificate of death reflects the Veteran died in September 2000 and identifies the Veteran's marital status as married at the time of his death and listed the Appellant as his spouse. In an April 2014 statement, the Appellant explained that after she and the Veteran separated in April 1995, the Veteran moved out and lived at a different residence. The Appellant indicated that when they separated, it was because they had a "difference in raising children." She reported there was no written agreement or court order for separation and that they never filed for divorce or annulment. The Appellant stated that the Veteran was very responsible and consistently gave her money the first of every month for the household and that they stayed in touch with each other, but never got back together. The Appellant indicated that she planned to take the Veteran home to take care of him when he got sick, but he passed away before she was able to bring him back to her home. In April 2014 statements, the Appellant's son and daughter both confirmed the Appellant's account of the Veteran moving out and that he stayed in touch. They also stated that the Appellant had planned to take care of the Veteran at her home when he became ill, however he passed away prior to coming home with the Appellant. The Board finds that although the evidence establishes the Appellant married the Veteran in September 1980 and was married to him at the time of his death, she may not be recognized as a surviving spouse for the purpose of establishing basic eligibility for non-service connected death pension benefits because she did not live continuously with the Veteran up until his date of death. Instead, the Appellant has consistently stated, and the other evidence of record also confirms that although they maintained contact, she resided in a separate location from the Veteran for many years. There is no evidence that the separation was due to the misconduct of, or procured by, the Veteran without the fault of the spouse. The Appellant indicated that the Veteran was very responsible and they separated due to a "difference in raising children." See April 2014 statement. Accordingly, the Board finds that the criteria for establishing status as a surviving spouse are not met, and the claim must be denied as a matter of law. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.