Citation Nr: 23023904 Decision Date: 04/25/23 Archive Date: 04/25/23 DOCKET NO. 19-15 603 DATE: April 25, 2023 ORDER Entitlement to recognition as the surviving spouse for purposes of establishing eligibility to VA death benefits, including survivor's pension, DIC and accrued benefits, is denied. FINDINGS OF FACT 1. The Veteran died on May [REDACTED], 2017. 2. The Veteran and the Appellant were married on June [REDACTED], 1967. 3. The Veteran and the Appellant were divorced in September 1998 and were not subsequently remarried. CONCLUSION OF LAW The criteria for recognition of the Appellant as the surviving spouse of the Veteran for the purpose of establishing basic eligibility for VA death benefits are not met. 38 U.S.C. §§ 101, 103, 5107; 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.54, 3.102 REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1967 to July 1970 and from June 1978 to August 1979. The Veteran passed away in May 2017, and the Appellant seeks recognition as the surviving spouse for purposes of establishing eligibility to VA death benefits. This matter came before the Board of Veterans Appeals (Board) on appeal from a July 2018 decision of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veteran's Law Judge during an April 2022 hearing. The transcript of the hearing is of record. The Appellant seeks recognition as the Veteran's surviving spouse and related entitlement to death benefits, including survivor's pension, DIC, and accrued benefits. She contends that such recognition is warranted because, although she and the Veteran were divorced, she had been married to him for 31 years. As will be explained in detail below, the Board concludes that the Appellant may not be recognized as the Veteran's surviving spouse for VA death benefits purposes as they were legally divorced and had not remarried at the time of his death. 38 C.F.R. § 3.50(b). To establish status as a claimant for the purposes of entitlement to VA death benefits, the Appellant must submit evidence of a valid marriage to the Veteran under the laws of the appropriate jurisdiction. The Appellant must also meet the criteria of surviving spouse. See 38 U.S.C. § 1541; 38 C.F.R. §§ 3.1(j), 3.50(a), (b); Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). For purposes of VA benefits, a marriage means a marriage valid under law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. § 3.1(j). For VA benefit purposes, the term "surviving spouse" means a person who: (1) was the lawful spouse of a veteran at the time of the veteran's death; (2) 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 (3) has not remarried. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b)(1). The key question in this case is therefore whether the Veteran and the Appellant were married at the time of his death in May 2017. However, the evidence shows that while the Appellant and the Veteran were married in June 1967 in the state of South Carolina, they were later divorced in September 1998. The divorce decree from the Family Court of the Second Judicial Circuit in the state of South Carolina shows that the Appellant was represented by an attorney at the proceeding and that a no fault divorce was granted due to one year's separation without cohabitation. Evidence shows that the Veteran later remarried another person (not the Appellant) in July 2004, also in the state of South Carolina, and passed away in May 2017. At the April 2022 hearing, the Appellant reported that she married the Veteran in 1967 and that they were divorced in 1998. She also stated that she felt she should be considered the surviving spouse because she and the Veteran never really separated before the divorce and that he tried to marry someone else while married to her. She also reported a history of domestic violence. The Board notes that the Appellant is competent to report lay observable events such as marriage and divorce, and further notes that her statements are supported by the other evidence of record. In addition to the evidence regarding her own marriage, the record shows that the Veteran obtained a marriage license to another woman (the same woman he later married in July 2004) in both June 1983 and April 1988, while he was still married to the Appellant. The Board therefore finds the Appellant's statements to be credible and assigns them significant probative weight. However, while the Board does not question the Appellant's reports that she and the Veteran did not truly separate, and the record also confirms her reports that the Veteran tried to marry another woman multiple times during the marriage, the evidence still does not show that she was legally married to the Veteran at the time of his death. Again, the record shows that they were legally divorced in 1998. While the Appellant has reported that she and the Veteran were not truly separated, the fact remains that they obtained a legal divorce in the state of South Carolina. The record does not show, and the Appellant has not claimed, that she and the Veteran remarried after the divorce in 1998. Instead, the evidence shows that he legally married another person in 2004. The Board acknowledges the Appellant's statements that this was the same woman that the Veteran tried to marry on two occasions during his marriage to the Appellant and finds that her statements are supported by the record. However, this does not change the fact that, after his marriage to the Appellant ended in divorce, he legally married another person. Consequently, the Appellant and the Veteran were not married at the time of the Veteran's death because they were divorced and had not remarried. 38 C.F.R. § 3.1(j). Therefore, the Appellant was not the spouse of the Veteran at the time of his death and may not be recognized as the Veteran's surviving spouse for VA death benefits purposes. 38 C.F.R. § 3.50(b). The United States Court of Appeals for the Federal Circuit has made it clear that there is no exception to the requirement that in order to be a surviving spouse, an appellant must be validly married to the veteran at the time of death. In Haynes v. McDonald, the Federal Circuit (Federal Circuit) reviewed a decision of the U.S. Court of Appeals for Veterans Claims (CAVC), which had held that 38 C.F.R. § 3.350(b) did not provide an exception to the requirement that a surviving spouse be a veteran's spouse at the time of death. The Federal Circuit found no error in the CAVC's interpretation of 38 C.F.R. § 3.350(b) as requiring that, to be a "surviving spouse," an appellant must be validly married to the veteran at the time of death. 785 F.3d 614, 616 (Fed. Cir. 2015). "No exception to this clear statutory mandate and regulation is indicated." Id. at 616. The Board is sympathetic with the Appellant's claim and acknowledges that she was married to the Veteran for many years, including during his service; however, in this case, there is no exception to the requirement that a surviving spouse be married to a veteran at the time of death, and no legal basis for granting the benefits requested by the Appellant, and neither the agency of original jurisdiction nor the Board is free to disregard laws and regulations enacted for the administration of VA programs. See 38 U.S.C. § 7104 (c); 38 C.F.R. § 20.101 (a). Any claim for equitable relief must be brought by petition directly to the Secretary of VA. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). No equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress. Smith v. Derwinski, 2 Vet. App. 429 (1992). In other words, the Board is bound by the governing legal authority, and is without authority to grant benefits on an equitable basis. As the Veteran and the Appellant were validly divorced prior to his death and did not remarry, she cannot be considered the Veteran's surviving spouse for VA benefits purposes under 38 U.S.C. § 101(3) or 38 C.F.R. § 3.50(b). Thus, there is no legal basis to award accrued benefits and the Appellant's claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold, 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.