BVA9504241 
DOCKET NO.  93-10 286     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida

THE ISSUE

Entitlement to recognition as the surviving spouse of the veteran
for the purposes of entitlement to Department of Veterans Affairs
death pension benefits.

ATTORNEY FOR THE BOARD

R. J. Rolfsen, Jr., Counsel

INTRODUCTION

The veteran served on active duty from March 1944 to April 1946.
He died in July 1992.

This appeal stems from an October 1992 decision of the St.
Petersburg, Florida, Department of Veterans Affairs (VA) Regional
Office (RO).

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends that she is entitled to recognition as the
surviving spouse of the veteran since she never signed or agreed
to a divorce.

DECISION OF THE BOARD

The Board of Veterans' Appeals (Board), in accordance with the
provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and
considered all of the evidence and material of record in the
veteran's claims file.  Based on its review of the relevant
evidence in this matter, and for the following reasons and bases,
it is the decision of the Board that the appellant is not
entitled to recognition as the surviving spouse of the veteran
for purposes of VA death pension benefits.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable disposition
of the veteran's appeal has been obtained by the originating
agency.

2. The veteran and the appellant were married in April 1971 and
divorced in May 1987.

3. The veteran died in July 1992.

CONCLUSION OF LAW

Since the appellant was not the lawful spouse of the veteran at
the time of his death, she is not the surviving spouse of the
veteran for VA death pension purposes.  38 U.S.C.A. §§ 101, 5107
(West 1991).

REASONS AND BASES FOR FINDING AND CONCLUSION

The basic facts are not in dispute.  The appellant and the
veteran were married in April 1971; the veteran obtained a
divorce from the appellant in May 1987.  The veteran died in July
1992.  The appellant contends that she was not aware of the May
1987 divorce and therefore she should be recognized as his
surviving spouse.

The term "surviving spouse" is defined by 38 U.S.C.A. § 101(3) as
a person of the opposite sex who was the spouse of a veteran at
the time of the veteran's death.

The evidence establishes that the appellant was not the spouse of
the veteran at the time of his death.  Although they were married
in April 1971, this marriage ended in divorce in May 1987. The
record includes a copy of a "Final Judgement", dated in May 1987,
entered by a Circuit Court judge in Orange County, Florida,
dissolving the marriage between the veteran, the petititioner,
and the appellant. The Board notes the appellant's contention
that she was not aware of the divorce, did not agree to it and
did not sign it; however, she has also reported that the veteran
sent her papers concerning the divorce thus providing her notice
of the proceeding. Accordingly, as the evidence clearly
establishes that the appellant was not married to the veteran at
the time of his demise, she may not be considered the surviving
spouse of the veteran for VA death pension purposes. 38 U.S.C.A.
§ 101.

ORDER

Entitlement to recognition as the surviving spouse of the veteran
for VA death pension purposes is denied.

          WAYNE M. BRAEUER
          Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988.  Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988).  The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.