Citation Nr: 22011964 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 18-11 330 DATE: March 2, 2022 ORDER Entitlement to recognition as the Veteran's surviving spouse for establishing entitlement to death benefits, including death pension and dependency and indemnity compensation, is denied. FINDINGS OF FACT 1. The Appellant and the Veteran were married in March 1970. 2. The Appellant and the Veteran divorced in 1994. 3. After their divorce, the Appellant and the Veteran did not remarry each other. 4. The Appellant and the Veteran were not married at the time of his death in January 2016, and his Certificate of Death shows he was divorced. CONCLUSION OF LAW The Appellant may not be recognized as the surviving spouse of the Veteran for Department of Veterans Affairs (VA) death benefits. 38 U.S.C. §§ 101, 103, 1102, 1304, 1310, 1541, 5124; 38 C.F.R. §§ 3.1, 3.3, 3.50, 3.52, 3.53, 3.54, 3.55, 3.204, 3.205, 3.206. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1965 to July 1969. He died in August January 2016. This matter comes to the Board of Veterans' Appeals (Board) from a November 2017 notification of a decision of a VA Agency of Original Jurisdiction (AOJ), which denied the Appellant's claim of entitlement to death pension, accrued benefits, and Dependency and Indemnity Compensation (DIC). The Appellant requests benefits as a surviving spouse. The Appellant testified at a Board hearing in October 2021. A copy of the transcript has been associated with the record and reviewed. Entitlement to recognition as the Veteran's surviving spouse for death benefits purposes, including death pension and dependency and indemnity compensation The Appellant contends that she is entitled to death benefits as the surviving spouse of the Veteran. 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 her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). An individual claiming to be the spouse of a veteran has the burden of coming forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991); Colon v. Brown, 9 Vet. App. 104, 107-08 (1996). A surviving spouse is defined as (1) a person in a recognized marriage for VA purposes; (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 except, as provided in 38 C.F.R. § 3.53 (a), 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 of the opposite sex 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). VA death benefits may be paid to a surviving spouse who was married to the Veteran: (1) one year or more prior to the Veteran's death or (2) for any period of time, if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C. §§ 1102, 1304, 1541; 38 C.F.R. § 3.54. A person divorced from a veteran is no longer the veteran's spouse and, thus, cannot be the veteran's surviving spouse. See Haynes v. McDonald, 785 F.3d 614, 616 (Fed. Cir. 2015), cert. denied, 136 S. Ct. 156 (2015)). In this case, the material facts are not in dispute. The appellant and the Veteran were married in March 1970 and divorced in 1994. After their divorce, the Appellant and Veteran did not remarry each other, under common law or by ceremony, and they were not married at the time of the Veteran's January 2016 death. Based on these undisputed facts, the appeal must be denied. The Board finds no basis to doubt the Appellant's assertion that her divorce from the Veteran resulted from his abusive behavior, and that he was the one who left her. However, the law is dispositive and clearly requires that a person be married to a veteran at the time of the veteran's death to qualify as a surviving spouse. As the Appellant was divorced from the Veteran, she cannot be the Veteran's surviving spouse. See Haynes, 785 F.3d 614, 616. The exception identified in 38 C.F.R. § 3.53(a) does not apply in this case. The regulation provides for an exception for a "separation" which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse. However, this separation is an exception to the requirement for continuous cohabitation even though the parties remained married. The regulation does not provide for an exception to the requirement that the Veteran be married to the surviving spouse at the time of death. The text indicates that the inquiry into the absence of fault for the "spouse" means that the Veteran's misconduct is only a relevant question if he were still married to the Appellant at the time of his death. Here, because the Appellant and Veteran were divorced, the question of misconduct does not need to be reached. The Board further acknowledges the Appellant's and her representative's arguments that the Veteran received benefits with a spouse as a dependent, and that she receives Social Security benefits as a "widow" even though she is divorced. However, a review of the record shows that the Veteran received compensation as a single veteran with no dependents, submitted paperwork showing he was divorced, and continuously reported to VA examiners that he was divorced. Additionally, Social Security decisions are not binding on the Board. See, e.g., Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (observing that while Social Security Administration decisions are relevant, there are significant differences between Social Security Administration and VA and Social Security Administration decisions are not binding on VA). The Board acknowledges the Appellant's descriptions of her marriage to the Veteran, the difficulties she endured after their divorce, and that they had children together and she never remarried. However, this is a situation where the Board is unable to grant benefits out of equity or fairness. The laws enacted by Congress, and regulations promulgated in pursuit thereof by VA, have tied the Board's hands. As matter of law, the Board has no discretion and cannot grant the appeal. See Davenport v. Principi, 16 Vet. App. 522 (2002); Harvey v. Brown, 6 Vet. App. 416 (1994); Sabonis v. Brown, 6 Vet. App. 426 (1994). In sum, because the Appellant and the Veteran were not married at the time of his death, the claim may not be granted. As noted, the Board is sympathetic to the Appellant's claim and does not dispute her testimony. Nevertheless, the Appellant's claim of entitlement to DIC benefits, accrued benefits, and survivor pension benefits must be denied as a matter of law. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.