Citation Nr: A25035181 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210831-181917 DATE: April 16, 2025 ORDER Recognition of the appellant as the Veteran's surviving spouse for purposes of dependency and indemnity compensation (DIC) is denied. FINDINGS OF FACT 1. The record shows that the appellant and the Veteran were legally married in December 1981; a final decree of divorce was entered effective December 2001. 2. The record does not show that the Veteran remarried the appellant before his death in August 2004. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran's surviving spouse for purposes of DIC have not been met. 38 U.S.C. §§ 101 (3), 103, 1541, 5107; 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.53. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1968 to August 1971. He died in August 2004. In a July 2021 letter, the Agency of Original Jurisdiction (AOJ) denied the appellant's claim for DIC. In the September 8, 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the appellant elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the July 2021 administrative decision letter on appeal, as well as any evidence submitted by the appellant or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 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 of the appellant as the Veteran's surviving spouse for purposes of DIC. The Appellant seeks recognition as the Veteran's surviving spouse for purposes of DIC benefits. When a veteran dies, his or her surviving spouse may be eligible for VA death benefits, to include DIC benefits, death compensation, and death pension. See 38 U.S.C. §§ 1121, 1310, 1541; 38 C.F.R. § 3.50 (a). Status as surviving spouse is a threshold requirement for both DIC and death pension benefits. For a person to establish recognition as a surviving spouse of a Veteran, there must be evidence of a valid marriage to the Veteran under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). A surviving spouse for VA purposes is defined as a person whose marriage to the veteran meets the requirements of 38 U.S.C. § 101 (3) and 38 C.F.R. § 3.1 (j), and who was the spouse of the veteran at the time of the veteran's death; and (1) 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 fault of the spouse; and (2) has not remarried or has not since the death of the veteran lived with another person and held himself/herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50 (b). "Marriage" means a marriage valid under the 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). 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 his or her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). The relevant facts in this case are not in dispute. The appellant and the Veteran married in December 1981, and legally divorced in December 2001. The Veteran died in August 2004. The record does not reflect that the Veteran remarried the appellant between the time of their divorce in December 2001 and the time of his death in August 2004. In her June 2021 DIC claim, she reported that their common law marriage had ended in divorce in August 2004. The Board recognizes the contentions of the appellant in the narrative attachment to her VA Form 10182, in which she expressed her frustration with his behavior as well as her living conditions during their marriage, and describes how she continued to help him out when he needed assistance. However, the fact remains that their marriage was terminated prior to the Veteran's death by legal decree, a copy of which is associated with the claims file. Therefore, notwithstanding the appellant had a marriage to the Veteran, once they were divorced, she could no longer be a surviving spouse unless they subsequently remarried prior to the Veteran's death. That did not occur in this case. While the Board is sympathetic, and acknowledges the sacrifice made by the appellant on behalf of the deceased Veteran during their marriage as well as her desire to assist other family members, the Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416 (1994) (only VA Secretary authorized to act upon requests for equitable relief). As such, where basic eligibility is absent, there is simply no provision pursuant to which the Board may grant the appellant the benefits sought. As such, the Board finds that the appellant is not recognized as the Veteran's surviving spouse for DIC purposes; and, as a matter of law, the claim is denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Struening, Eric 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.