Citation Nr: 22017218 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-53 655 DATE: March 24, 2022 ORDER Recognition of the appellant as the Veteran's surviving spouse for the purpose of establishing entitlement to Dependency and Indemnity Compensation (DIC) and death pension benefits is denied. FINDINGS OF FACT 1. The Veteran and appellant divorced in 1991; the Veteran died in June 2008. 2. The appellant does not meet the definition of "surviving spouse." CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran's surviving spouse for purposes of entitlement to DIC benefits and death pension benefits are not met. 38 U.S.C. § 101, 5107; 38 C.F.R. §§ 3.1, 3.50, 3.53. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from December 1962 to December 1966. The Veteran died in June 2008. The appellant is the Veteran's former spouse and is claiming surviving spouse status. In her substantive appeal to the Board, the appellant requested a hearing before a member of the Board. She was notified of her scheduled January 2022 hearing by letter in November 2021, but did not attend the hearing or subsequently request a new hearing. Her hearing request is deemed withdrawn. Recognition of appellant as the Veteran's surviving spouse for the purpose of establishing entitlement to DIC and death pension benefits DIC benefits, to include service connection for cause of death and death pension benefits are payable to a surviving spouse. 38 U.S.C. § 1010(14) (2012); 38 C.F.R. § 3.5(b) (2017). A "surviving spouse" is defined as a person who was the spouse of a veteran at the time of the veteran's death, and 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 who has not remarried or (in cases not involving remarriage) has not since the death of the veteran lived with another person and held himself or herself out openly to the public to be the spouse of such other person. See 38 U.S.C. § 101(3); 38 C.F.R. § 3.50. In May 2016 the appellant filed a claim for DIC and death pension benefits. She contends that she is entitled to benefits as she was married to the Veteran for 24 years, neither she nor the Veteran remarried after their divorce, she is his only living spouse and the divorce was due to his service-connected conditions. While the appellant was married to the Veteran, they divorced in 1991. The evidence of record includes the divorce decree entered by a Judge of the Circuit Court for the State of Michigan dated March 8, 1991. See VA 21-534EZ May 2016. The record does not reflect, nor does the appellant contend that she was married to the Veteran at the time of death. Rather, she alleges that she is entitled to benefits due to her divorce being necessary for the safety of her, the children and the Veteran due to his struggle with posttraumatic stress disorder. See Appellate Brief March 2022. Pursuant to 38 C.F.R. § 3.50 there must be the existence of a valid marriage between the veteran and the person claiming status as a surviving spouse at the time of the veteran's death and the veteran and the person claiming status as a surviving spouse continuously cohabitated during the marriage up until the time of the veteran's death, subject to certain exceptions, including separation, which was due to the misconduct of, or procured by, the veteran without the fault of the spouse. See 38 C.F.R. §§ 3.50(b)(1), 3.53(a). While 38 C.F.R. § 3.50(b)(1) has a provision relating to the misconduct of the Veteran, and lack of fault of the spouse, this provision serves only as a limited exception to the requirement that a person seeking surviving spouse status have lived with the veteran continuously from the date of marriage to the date of the veteran's death, the parties must still be married at the time of the veteran's death. See 38 C.F.R. § 3.50(b)(1) (expressly defining "surviving spouse" as someone "who was the spouse of the veteran at the time of the veteran's death"). Additionally, the United States Court of Appeals for the Federal Circuit (Federal Circuit), in Haynes v. McDonald, 785 F.3d 614 (Fed. Cir. 2015), addressed the impact of misconduct upon the marriage requirement. In Haynes, the Federal Circuit affirmed a decision of the Court of Appeals for Veterans Claims (Court) that interpreted 38 C.F.R. § 3.50(b)(1) to require that a veteran and claimed surviving spouse be married at the time of the veteran's death. Id. at 616. The Federal Circuit stated that the Court did not err in holding that there was no exception to the marriage requirement when a veteran and former spouse divorced on the basis of abuse. Id. Thus, the evidence establishes that the appellant and Veteran were divorced at his time of death. A valid, current marriage is a prerequisite to entitlement to death benefits, and there is no exception for divorces due to service connected conditions. Id. Therefore, as the appellant is not the surviving spouse of the Veteran, there is no legal basis for a grant for her claims of entitlement to service connection for cause of death or entitlement to death pension benefits. Accordingly, the claims must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.