Citation Nr: A25035148 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240823-468739 DATE: April 16, 2025 ORDER Entitlement to recognition as the surviving spouse for purposes of establishing basic eligibility for VA death benefits is denied. FINDING OF FACT The Veteran and the appellant divorced in January 1994, and they were not subsequently remarried prior to the Veteran's death. 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 FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to July 1968. He died in August 1999. The appellant is the Veteran's former wife. The matter is on appeal under the Appeals Modernization Act (AMA) from a decision issued in July 2024. In the August 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the appellant elected the Hearing docket. A Board hearing was held in December 2024. Therefore, the Board may only consider the evidence of record at the time of the July 2024 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the appellant and her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. If the appellant would like VA to consider any evidence that was submitted that the Board could not consider, the appellant may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Recognition as Surviving Spouse A veteran's surviving spouse is entitled to death and indemnity compensation (DIC) benefits if the veteran died from a service-connected or compensable disability. 38 U.S.C. § 1310(a). Generally, a surviving spouse is a person who (1) was validly married to the veteran at the time of the veteran's death per 38 C.F.R. § 3.1 (j), (2) lived with the veteran from the date of marriage until the veteran's death, and (3) has not remarried, or held themselves out to be married, to another person since the veteran's death. 38 C.F.R. § 3.50(b)(1)-(2). An exception is that a person may be recognized as a surviving spouse if the marriage would have occurred except for a legal impediment that the claimant was unaware of at the time of the marriage. To establish surviving spouse status, the first requirement is a valid marriage. 38 C.F.R. §§ 3.50; 3.1(j). To determine whether a valid marriage occurred, VA applies the law of the state where the parties resided at the time of the marriage, or the law of the place where the parties resided at when the right to benefits accrued. 38 C.F.R. § 3.1(j). The appellant must submit evidence of a valid marriage to the Veteran under the laws of the appropriate jurisdiction. The second requirement is that a veteran and the appellant must have lived together 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. 38 C.F.R. § 3.50(b)(1). The final requirement is that the appellant cannot have remarried or lived with a person of the opposite sex and held him-or herself out as being married to that person since the veteran's death. 38 C.F.R. 3.50(b)(2). The validity of a divorce decree, regular on its face, will be questioned by VA only when that validity is put in issue by a party thereto or a person whose interest in a claim for VA benefits would be affected thereby. 38 C.F.R. § 3.206. The appellant seeks recognition as the Veteran's surviving spouse and related entitlement to VA death benefits. She contends that such recognition is warranted because, although she and the Veteran were divorced, the divorce was caused by the Veteran's misconduct and through no fault of her own. At her December 2024 hearing, the appellant stated that the Veteran began mentally abusing her, which eventually developed to physical abuse. She kept trying to help him for the sake of her family, and held on for 23 years until she could not take it anymore. Following their divorce, she would still give him rides if he needed them. After the divorce, the Veteran stayed in a shelter and then from one place to the other. The Board finds that the appellant was legally divorced from the Veteran at the time of his death. The evidence shows that the appellant and the Veteran were married in June 1971. See Marriage Certificate (received September 2023). The record also reflects that they were subsequently divorced in January 1994. See Divorce Decree (received September 2023). The divorce decree reflects that the appellant and the Veteran divorced due to cruel and abusive treatment by the Veteran. The Veteran passed away in August 1999, and his marital status is listed as divorced. See Death Certificate (received September 2023). Therefore, the appellant was not the Veteran's spouse at the time of his death. This is uncontroverted, the appellant acknowledges her divorce from the Veteran; the Veteran's death certificate shows his marital status as divorced; and the appellant submitted their divorce decree. Further, it is neither contended nor shown that appellant remarried the Veteran after their divorce, or that she and the Veteran entered into a common law marriage after the divorce. The Board has considered the appellant's divorce due to abuse by the Veteran. However, the second requirement for establishing surviving spouse recognition is that a veteran and the appellant must have lived together from the date of marriage to the Veteran's death except where there was a separation which was due to the misconduct of, or procured by, the Veteran. 38 C.F.R. § 3.50(b)(1). In this case, there was not a separation due to the Veteran's misconduct, but rather a divorce. The relevant law does not provide an exception to the cohabitation requirement for a divorced couple unlike a separated couple regardless of the grounds of the divorce. See 38 U.S.C. § 101(3); 38 C.F.R. § 3.50. Here, the appellant and the Veteran were divorced, rather than separated. That bars the appellant from recognition as the Veteran's surviving spouse. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). The Board sympathizes with the appellant and understands that she was mistreated by the Veteran during their marriage. Unfortunately, the Board is without authority to grant surviving spouse status on an equitable basis. See 38 U.S.C. §§ 503, 7104; Burris v. Wilkie, 888 F.3d 1352, 1358 (Fed. Cir. 2018). "No equities, no matter how compelling, can create a right to payment of the United States Treasury which has not been provided for by Congress." See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). In this case, the relevant law precludes recognition as a surviving spouse for an appellant who was not married to the Veteran at the time of his death despite divorce based on abuse. See Id. and Haynes v. McDonald, 785 F.3d 614 (Fed. Cir. 2015) (former spouse of deceased veteran, who was not married to veteran at time of his death, was not entitled to dependency and indemnity compensation, notwithstanding that her divorce from veteran was based on abuse). Accordingly, the claim for VA survivor's (death) benefits is denied as a matter of law as the appellant may not be recognized as the Veteran's surviving spouse. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Yoon, 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.