Citation Nr: 22017682 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 14-14 358 DATE: March 25, 2022 ORDER Recognition of the Appellant as the Veteran's spouse for the purpose of receiving VA death benefits is denied. FINDING OF FACT The Veteran died in October 2005. At the time of the Veteran's death, the Appellant was not married to the Veteran. CONCLUSION OF LAW The Appellant is not entitled to recognition as the Veteran's surviving spouse for the purpose of receiving VA death benefits. 38 U.S.C. §§ 101, 103; 38 C.F.R. §§ 3.1 (j), 3.5, 3.50. REASONS AND BASES FOR FINDING AND CONCLUSION The matter comes on appeal from a November 2012 decision which denied entitlement to VA death benefits because the Appellant was not recognized as the surviving spouse of the Veteran for the purpose of receiving VA benefits. The Appellant requested a Travel Board hearing in an April 2014 substantive appeal (VA Form 9). The Board attempted to schedule the Appellant for a hearing; however, the February 2022 notice letter informing the Appellant of the scheduled hearing was returned as undelivered. The record shows that prior hearing correspondence, dated from 2016 to 2020, also sent to the Appellant's last address or record has been returned as undelivered. The Appellant is responsible for keeping VA apprised of her current mailing address. The Board finds that VA has made reasonable attempts to contact the Appellant and attempt to schedule a hearing. The Board finds, therefore, that absent current contact information for the Appellant, no further action is necessary to schedule a hearing. See 38 C.F.R. § 3.655; see also Olson v. Principi, 3 Vet. App. 480, 483 (1992) (holding that the duty to assist is not always a one-way street, or a blind alley, and that the claimant must be prepared to cooperate with the VA's efforts to provide an adequate medical examination and submit all the medical evidence supporting his claim.). Recognition of the Appellant as the Veteran's spouse for the purpose of receiving VA death benefits For VA purposes, a marriage is considered 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 U.S.C. § 103(c); 38 C.F.R. § 3.1(j). 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. One claiming to be the spouse of a veteran has the burden to come forward with a preponderance of 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 her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). A License and Certificate of Marriage from the State of California shows that the Appellant and Veteran were married in April 1991. However, a Superior Court of California, County of Fresno, Judgment of Dissolution shows that the Appellant and Veteran's marriage was terminated by divorce in December 1998, prior to his death. The Judgment of Dissolution shows that the Appellant was the petitioner in requesting dissolution of the marriage. The Veteran reported the divorce to VA and submitted a copy of the Judgment of Dissolution in January 1999. Moreover, November 1991 and December 1991 statements of record from the Appellant and Veteran, respectively, show that the Appellant was estranged from and had not lived with the Veteran since July 1991. In March 1993, the Veteran again reported that the Appellant was not living with him and he did not have her contact information. The record shows that subsequent to the 1998 divorce, the Veteran remarried another woman in 2003. A Certificate of Death from the State of California shows that the Veteran died in October 2005. The death certificate listed the Veteran's spouse from his 2003 marriage as his "wife." The Board finds that the evidence of record, to include a December 1998 Judgment of Dissolution of marriage, provides probative evidence showing that the Veteran was divorced from the Appellant at the time of his death. For VA benefits purposes, a marriage means a marriage valid under the law of the place where the parties resided at the time of the marriage, or where the parties resided when the right to benefits accrued. 38 C.F.R. § 3.1 (j). A Judgment of Dissolution shows that the Appellant and the Veteran were divorced. The Appellant has the burden to establish her status as claimant. However, she has not presented any evidence to show that she was not divorced to the Veteran at the time of his death. The Board finds that her April 2014 statement in which she reported that she did not sign any documents that resulted in divorce is not probative in light of the Judgment of Dissolution showing that she was the petitioner initiating the divorce action. Moreover, earlier statements of record show that the Appellant and the Veteran were estranged, and she did not live with the Veteran continuously from the date of marriage to the date of the Veteran's death. (Continued on the next page) The evidence persuasively weights against finding, at the time of the Veteran's death, that there was a valid marriage. Accordingly, the Appellant does not meet the definition of surviving spouse for the purpose of receiving VA death benefits. See 38 C.F.R. § 3.50(b). The legal criteria governing the status of a deceased Veteran's widow as a surviving spouse are clear and specific, and the Board is bound by them. The Appellant is not entitled to recognition as the Veteran's surviving spouse for the purpose of receiving VA death benefits. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.