Citation Nr: 22016456 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 16-29 814 DATE: March 22, 2022 ORDER Entitlement to recognition as the surviving spouse of the Veteran for the purpose of Dependency and Indemnity Compensation (DIC) benefits is denied. FINDINGS OF FACT 1. The Veteran and the appellant were married in March 1968 and remained married until the Veteran's death in September 1986. 2. The appellant remarried in March 1992, when she was 45 years old, and that marriage has not ended by annulment, divorce, or been otherwise dissolved. 3. The appellant's December 1986 claim for death benefits was denied in a December 1986 administrative decision, which became final. 4. The appellant is not a Nehmer class member. CONCLUSION OF LAW The criteria for entitlement to DIC benefits have not been met. 38 U.S.C. §§ 101 (3), 511(a) 1121, 1310, 1541, 5121, 5124(a), 7104(a); 38 C.F.R. §§ 3.3, 3.23, 3.54, 3.55, 3.204, 3.205, 3.211, 3.1000, 20.101. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1970 to December 1971. The Veteran died in September 1986. The appellant was married to the Veteran at the time of his death. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to DIC benefits. The appellant timely perfected an appeal. See March 2016 Notice of Disagreement; June 2016 Statement of the Case; June 2016 VA Form 9. In October 2021, the appellant testified at a hearing before the undersigned, a transcript of which is associated with the claims file. Entitlement to DIC Benefits The appellant contends that she is entitled to DIC as the remarried surviving spouse of the Veteran. She asserts that she did not know that the Veteran's death may have been service related when she remarried in 1992, and she requests that she be granted retroactive DIC benefits from the date of the Veteran's death through the date that she remarried. She also generally asserts that it is unjust to bar surviving spouses who remarry from receiving DIC. See March 2016 Notice of Disagreement; June 2016 VA Form 9; November 2016 Congressionals; October 2021 Hearing Transcript. Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the Veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5 (a)(1). 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 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. 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). In the present case, the basic facts are not in dispute. The Veteran and the appellant were married in March 1968 and remained married until the Veteran's death in September 1986. See Marriage Certificate; Death Certificate. As such, she was the Veteran's surviving spouse at the time of his death. The Veteran's death certificate lists his immediate and only cause of death as metastatic basosquamous carcinoma. In December 1986, the appellant filed an application for DIC and/or death pension benefits, which VA denied in December 1986 on the basis that the evidence did not establish that the Veteran's death was due to a service-connected disability and because the Veteran's income was too high to qualify for VA death pension. The appellant did not appeal this decision, nor was any communication or evidence concerning that determination received within the one-year appeal period. Therefore, that denial became final. See 38 C.F.R. §§ 3.104, 3.156, 20.302. In February 2015, the appellant submitted a claim for DIC benefits as the surviving spouse of the Veteran. In her application, the appellant indicated that she had remarried in March 1992 and that she was still married. After a review of the evidence, the Board finds that the applicable legal criteria prevent recognition of the appellant as the Veteran's surviving spouse for purposes of eligibility for VA death benefits. In this case, the appellant was married to the Veteran at the time of his death and was indeed his surviving spouse. However, the appellant remarried in March 1992 at the age of 45. There is no indication that the appellant has terminated the marital relationship. Remarriage is generally a bar to eligibility for status as a surviving spouse. However, there are exceptions to the general rule. 38 C.F.R. §§ 3.55 (a)(1)-(10); see also 38 U.S.C. §§ 103 (d), 1311(e). Under 38 C.F.R. § 3.55 (a)(1), remarriage of a surviving spouse shall not bar the furnishing of benefits to such surviving spouse if the marriage was void or annulled. 38 C.F.R. § 3.55 (a)(1). The remarriage of a surviving spouse on or after October 1, 1998, terminated by death, divorce, or annulment will not bar the furnishing of DIC benefits, unless the divorce or annulment was secured through fraud or collusion. 38 C.F.R. § 3.55 (a)(3). These exceptions do not apply because the appellant's remarriage has not been terminated. On or after January 1, 2004, the remarriage of a surviving spouse after the age of 57 shall not bar DIC. A surviving spouse who remarried after the age of 57, but before December 16, 2003, may be eligible for DIC provided the application for such benefits was received by the VA before December 16, 2004. 38 C.F.R. § 3.55 (10). The appellant remarried when she was 45 years old. Although the remarriage was before December 16, 2003, she was less than 57 years old, so the exception does not apply. The appellant's main contention is that she should be awarded retroactive benefits from the date of Veteran's death until she remarried in 1992. However, the law does not allow for any such retroactive benefits. As noted above, the appellant did not appeal a December 1986 decision denying her application for death benefits. Thus, even if the appellant were recognized as a surviving spouse, the effective date of any award based on that status could not be earlier than the date of her second application in February 2015. The Board acknowledges an exception to these effective date regulations with regard to earlier effective date claims for service connection for diseases presumed to be caused by herbicide exposure. See 38 C.F.R. § 3.816; see also Nehmer v. U.S. Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999) (Nehmer II); Nehmer v. Veterans Admin. of the Gov't of the U.S., 284 F. 3d 1158 (9th Cir. 2002) (Nehmer III); Nehmer v. U.S. Veterans Admin., 494 F. 3d 846 (2007) (Nehmer IV). A "Nehmer class member" is defined as a Vietnam veteran who has a covered herbicide disease, or a surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease. 38 C.F.R. § 3.816 (b)(1)(i) and (ii). The term "covered herbicide disease" means a disease for which the Secretary of Veterans Affairs has established a presumption of service connection pursuant to the Agent Orange Act of 1991. 38 C.F.R. §§ 3.309 (e) and 3.816(b)(2). The Nehmer regulation provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a Nehmer class member has been granted compensation from a covered herbicide disease. Either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985, and May 3, 1989; or (2) the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989, and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease. In these situations, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816 (c)(1), (2). Here, although VA denied compensation in a decision issued between September 25, 1985, and May 3, 1989, the appellant would not be considered a Nehmer class member because the Veteran did not die from a covered herbicide disease. Although the Veteran served in Vietnam and is presumed to have been exposed to certain herbicide agents, neither basal cell carcinoma nor squamous cell carcinoma is among the diseases presumed to be associated with exposure to certain herbicide agents. 38 C.F.R. § 3.309 (e). Thus, while the December 1986 claim was denied by VA within the period under 38 C.F.R. § 3.816, it nonetheless fails to establish a basis for eligibility for retroactive DIC to the appellant based on the reasons discussed above. Finally, to the extent that the appellant is arguing that surviving spouse status should be conferred upon her based on equity, the Board is unfortunately bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104(c); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board acknowledges the appellant's belief that she should be entitled to receive DIC benefits as the Veteran's surviving spouse based on the support and care she provided during his lifetime. While the Board is grateful for the late Veteran's honorable service in defense of his country and is sympathetic to the appellant's claim, the Board is bound by the statutes and regulations and is unable to grant benefits out of equity or fairness. Continued on next page Unfortunately, because the appellant remarried after the Veteran's death, and as no exceptions in 38 C.F.R. § 3.55 (a) apply, the appellant is not a proper claimant for the benefit sought. Moreover, as there is no provision of law to establish a basis for eligibility for retroactive DIC to the appellant under Nehmer or otherwise, her appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kipper, 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.