Citation Nr: 22013570 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 15-29 755 DATE: March 10, 2022 ORDER Eligibility as the surviving spouse of a Veteran, for the purpose of entitlement to dependency and indemnity compensation (DIC), death pension, and accrued benefits is denied. FINDINGS OF FACT 1. The appellant and Veteran were married in February 1952 and divorced in April 1991. 2. The Veteran died in March 2004; the Certificate of Death lists the Veteran's marital status as divorced. CONCLUSION OF LAW The criteria for entitlement to eligibility as the surviving spouse of the Veteran for purpose of entitlement to DIC, compensation, and accrued benefits have not been met. 38 U.S.C. §§ 101, 103, 1102, 5124; 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.53, 3.54, 3.204, 3.205. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had 20 years of active duty service ending with his retirement in May 1968. The Veteran died in March 2004. The appellant is seeking VA benefits as the Veteran's surviving spouse. In her substantive appeal, the appellant requested a Board video-conference hearing, which was scheduled in December 2021. However, the appellant failed to appear and has not submitted good cause for such failure. Thus, the Board finds that appellant's hearing request withdrawn. Eligibility as the surviving spouse of a Veteran, for the purpose of entitlement to dependency and indemnity compensation (DIC), death pension, and accrued benefits When a veteran dies, his or her surviving spouse may be eligible for VA death benefits, to include DIC benefits, accrued benefits, and death pension. See 38 U.S.C. §§ 1121, 1310, 1541; 38 C.F.R. § 3.50 (a). Consequently, "surviving spouse" status is a threshold requirement for DIC, death pension benefits, and accrued benefits. For a person to establish recognition as a surviving spouse of a veteran, there must be evidence of a valid marriage to the veteran under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The validity of a marriage is determined based upon the law of the jurisdiction where the parties resided at the time of marriage or when the rights to benefits accrued. 38 C.F.R. § 3.1 (j). There are various methods in which a valid marriage may be established for VA benefit purposes. See 38 C.F.R. § 3.205. A surviving spouse for VA purposes is defined as a person whose marriage to the 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 fault of the spouse; and (2) has not remarried or has not since the death of the veteran lived with another person and held himself/herself out openly to the public to be the spouse of such other person. 38 C.F.R. §§ 3.50(b), 3.53. VA defines a "marriage" as a marriage valid under the law of the place where the parties resided at the time of marriage, or the laws 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). A valid marriage may be established by various types of documentary evidence together with the claimant's certified statement concerning the date, place and circumstances of dissolution of any prior marriage, provided that such facts, if they were to be corroborated by the evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205 (a). Thus, the standard of proof outlined in the applicable local law for determining whether or not a marriage existed between the appellant and veteran applies and trumps the "benefit of the doubt" standard generally applicable in the processing of a claim for VA benefits. See Burden v. Shinseki, 25 Vet. App. 178, 183. In addition, VA must specifically address the way in which the applicable local law is applied. Scott v. Principi, 3 Vet. App. 352, 354-57 (1992) The appellant seeks recognition as the surviving spouse of the Veteran, who died in March 2004. Although they were divorced in April 1991, the appellant contends that the divorce was the direct result of the Veteran's posttraumatic stress disorder and that she was forced to leave to protect her family from the Veteran's abuse. Nevertheless, while the Board is sympathetic to the appellant's position, the evidence clearly shows that the appellant was not married to the Veteran at the time of his death, and therefore, is not entitled to recognition as his surviving spouse. See 38 C.F.R. § 3.50. The Board acknowledges the appellant's sincere belief that she should be entitled to VA benefits and is sympathetic to her claim that the divorce was the result of the Veteran's behavior. However, the pertinent legal authority governing recognition as a surviving spouse for VA benefits purposes clearly requires that they be married at the time of death. The Board is bound by such authority and is without power to grant a claim for benefits on an equitable basis. See U.S.C. §§ 503; 7104; McCay v. Brown, 9 Vet. App. 183, 189 (1996). Moreover, the Board has considered the appellant's assertion that the divorce was due to misconduct of the Veteran. Nevertheless, the provision relating to the misconduct of the Veteran in 38 C.F.R. § 3.50 (b)(1) has no application in the context of a deemed valid marriage determination pursuant 38 C.F.R. § 3.52 and serves only as a limited exemption for abuse victims who fail to meet the cohabitation requirements of 38 C.F.R. § 3.50. See Burden v. Shinseki, 727 F.3d 1161, 1170-71. Therefore, as the appellant was divorced at the time of the Veteran's death, the appellant does not meet the definition of a "surviving spouse" for the purpose of receiving VA death benefits. See 38 C.F.R. § 3.50 (b); see also Haynes v. McDonald, 785 F.3d 614 (Fed. Cir. 2015) (there is no exception to the requirement that the surviving spouse and veteran be married at the time of the veteran's death even when an appellant was previously married to a veteran and was divorced on account of spousal abuse). In sum, while the Veteran's abusive actions may have been cause of the divorce, the provision relating to the misconduct of the Veteran in 38 C.F.R. § 3.50 (b)(1) has no application in the context of this case as the regulation still requires that the appellant be legally recognized as the Veteran's spouse. Furthermore, there is no argument or indication that the divorce in 1991 was invalid. Instead, a legal jurisdiction in Texas recognized the divorce as lawful with its issuance of a Divorce Decree. "Marriage" is defined as a marriage 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 C.F.R. § 3.1 (j). Moreover, there is no evidence or argument that the appellant believed they subsequently had a legal marriage to each other, or that they resumed a marital-type relationship after their divorce, to include holding themselves out as husband and wife or continuously cohabitating under § 3.52. Consequently, the Appellant's undisputed divorce from the Veteran bars her from eligibility for status as his surviving spouse. 38 U.S.C. § 101 (3); 38 C.F.R. § 3.50 (b)(2); see also Marrero v. Gober, 14 Vet. App. 80, 82 (2000) (per curiam order) (holding that the appellant was not the veteran's spouse because they divorced). In conclusion, the Board finds that the appellant was not the lawful spouse of the Veteran at the time of his death and thus, as a matter of law, she cannot be considered the Veteran's surviving spouse for VA benefits purposes. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of lack of legal merit or lack of entitlement under the law). There is no reasonable doubt to be resolved, and the appeal is denied. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.