Citation Nr: A24021663 Decision Date: 04/29/24 Archive Date: 04/29/24 DOCKET NO. 200824-105668 DATE: April 29, 2024 ORDER Recognition of L.S. as the spouse of the Veteran for purposes of dependency and indemnity compensation (DIC), death pension, and accrued benefits is granted. FINDINGS OF FACT 1. The Veteran passed away in November 2018. 2. The appellant was married to the Veteran for more than one year, lived continuously with the Veteran until his death, and has not remarried after the Veteran's death. CONCLUSION OF LAW The criteria for DIC, death pension, and accrued benefits as the Veteran's surviving spouse have been met. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.1, 3.52. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably on active duty in the United States Air Force from January 1979 to September 1980. The appellant is the Veteran's widow. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2020 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the January 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the August 2020 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Recognition of L.S. as the spouse of the Veteran for purposes of DIC, death pension, and accrued benefits is granted. The appellant contends she is entitled to DIC, death pension, and accrued benefits as the surviving spouse of the deceased Veteran. DIC may be awarded to a surviving spouse, child, or parent of a veteran who dies from a service-connected or compensable disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a). The issue of whether the Veteran's death was caused by a service-connected disability is not currently at issue; the sole issue on appeal is recognition of L.S. as a surviving spouse. An eligible survivor may submit a request to be considered a substitute party for the purpose of continuing a pending claim or appeal. 38 U.S.C. § 5121A. The Veteran did not have a pending claim at the time of his death; therefore, there is no basis for the appellant to be deemed a substitute party. The surviving spouse of a qualified veteran is eligible to receive death benefits (i.e., dependency and indemnity compensation (DIC), compensation, accrued benefits, or pension) if the surviving spouse was married to the veteran for one year or more. A "surviving spouse" is defined in relevant part as a person whose marriage to a veteran meets the requirements of either 38 C.F.R. § 3.1(j) or 38 C.F.R. § 3.52 and: (1) who was the spouse of the veteran at the time of the veteran's death; (2) 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 (3) 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). As previously noted, the Veteran passed away in November 2018. The Veteran's death certificate lists the appellant as his surviving spouse. In March 2020, the appellant submitted a marriage certificate that reflects that she married the Veteran in July 2008 in Arkansas. In her June 2020 VA 21-534EZ, the appellant indicated that she had not remarried after the Veteran's death and lived continuously with the Veteran until his death. (Continued on the next page) ? The Board finds that the appellant, L.S., meets the definition of a "surviving spouse." The appellant was married to the Veteran for more than one year, lived continuously with the Veteran until his death, and has not remarried after the Veteran's death. Therefore, the Board finds that the criteria for DIC, death pension, and accrued benefits as the Veteran's surviving spouse have been met. Christopher Seppanen Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Gandhi, 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.