BVA9505926 DOCKET NO. 93-11 525 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Whether the appellant is entitled to receive dependency and indemnity compensation or death pension as a surviving spouse of the veteran. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, her daughter and [redacted] ATTORNEY FOR THE BOARD Susan S. Toth, Associate Counsel INTRODUCTION The veteran had active service from March 1941 to September 1944 and died in December 1991. The appellant is a former spouse of the veteran. This matter arises from a decision of March 1992, whereby the Regional Office (RO) determined that the appellant was not entitled to received dependency and indemnity compensation (DIC) or death pension since she was not considered the veteran's surviving spouse. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that she should be considered the veteran's surviving spouse since she was married to him for 18 years and was willing to remarry him if he ceased his violent and abusive behavior. She asserts that if she had known she was foregoing the right to receive DIC benefits by divorcing the veteran, she would have remained married to him despite his offensive behavior. She further maintains that even though he died two months after the parties divorced, he wished for all of his VA benefits to go to the appellant. DECISION OF THE BOARD The 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's claim for entitlement to receive either DIC or death pension benefits as a surviving spouse of the veteran lacks legal merit. FINDINGS OF FACT 1. The veteran and appellant were married in February 1973. 2. The marriage was dissolved by judicial decree in September 1991. 3. At the time of the veteran's death in December 1991, the appellant was not married to the veteran. CONCLUSION OF LAW The appellant is not entitled to DIC or death pension as a surviving spouse of the veteran. 38 U.S.C.A. §§ 101(14), 103(c), 1541(a) (West 1991); 38 C.F.R. §§ 3.1(j), 3.3(b)(4), 3.5(a)(1), 3.50(c) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran died in December 1991, several months after finalization of his divorce from the appellant. The appellant filed an application for dependency and indemnity compensation or death pension by a surviving spouse or child (including accrued benefits and death compensation, where applicable) in February 1992. Service connection for the cause of the veteran's death was denied pursuant to rating decision of March 1992. Pursuant to administrative decision dated in that month, the RO also denied the appellant entitlement to DIC and death pension since she was not considered a surviving spouse of the veteran. The appellant had submitted various documents along with her original claim. The marriage certificate of the appellant and veteran reflected that they were married in February 1973. The marriage was subsequently dissolved by judgment of the Superior Court of California in Riverside County in September 1991. Also submitted was a form signed by the veteran in March 1991 which was entitled Important Information on Veteran for Survivors. Therein, the veteran specified that he wished for his financial agreements or investments and bank accounts to go to his wife upon his death. In March 1992, the appellant submitted additional documentation to support her claim. A friend of the appellant's, [redacted], provided a statement to the effect that the veteran had asked the appellant to return to him following his heart attack. She agreed to do so, however, the veteran died the next day. The Edwards, neighbors of the appellant and the veteran, also provided a statement wherein they reported that the police had to be called in one day during February 1991 after the veteran went on a rampage. After the police left, the veteran began placing objects of the appellant's into the car and told her to leave. The appellant also submitted an undated copy of a greeting card given to her by the veteran. In October 1992, the appellant submitted various statements and appeared to testify at a hearing conducted at the RO. Her daughter and [redacted] also appeared on her behalf. The witnesses related how the appellant left the veteran in February 1991 after the above mentioned incident. That incident began when the veteran became angry over a neighbor building sheds which obstructed his view. He became abusive and threatened to burn the appellant's daughter's trailer down along with the appellant's clothes. Upon returning to the trailer the next day, the appellant noted that the veteran had placed all of her belongings in the car. At that point, she separated from him and divorce proceedings were begun. The night before he died, the veteran asked her to come back to him. She said she would consider doing so and now felt that she would have remarried him had he survived. The statements submitted included an undated copy of an envelope with a statement on the front signed by the veteran. The statement told the appellant to contact a DAV representative after his death concerning VA benefits. Also submitted was an undated letter to the appellant from the veteran in which he stated that he would help her with trailer repairs around the 10th of December. The appellant's sister, mother and a friend, Rosie Fulton, provided written statements wherein they reported that the veteran had a violent temper and abused the appellant. They also stated that the veteran's nervous condition had increased in severity over the years. The appellant's sister stated that the appellant finally had to leave him to save her own life. Under the applicable criteria, improved death pension is a benefit payable to a veteran's surviving spouse or child because of the veteran's nonservice-connected death. 38 U.S.C.A. § 1541(a); 38 C.F.R. § 3.3(b)(4). Dependency and indemnity compensation (DIC) is a payment made by the VA to a surviving spouse, child or parent because of a service-connected death occurring after December 31, 1956. 38 U.S.C.A. § 101(14); 38 C.F.R. § 3.5(a)(1). The term "surviving spouse" means a person of the opposite sex who was the spouse of a veteran at the time of the veteran's death (and meets the requirements of 38 C.F.R. § 3.1(j)), and 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 who has not remarried. 38 U.S.C.A 38 C.F.R. § 3.50(c). "Marriage" means a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). In this case, the appellant's claim lacks legal merit since she was not the lawful spouse of the veteran at the time of his death. The claims folder contains documentation showing that the veteran and appellant were divorced prior to his death. While the arguments presented by the appellant are compelling, the applicable laws and regulations clearly and unmistakably require that the parties be lawfully married at the time of a veteran's death for a widow to be considered a surviving spouse. While the veteran may have wanted the appellant to receive VA benefits, the laws and regulations specifically set forth the persons to whom benefits may be paid. The United States Court of Veterans Appeals has held that in a case where the law is dispositive of the claim, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). ORDER The appellant's claim for DIC or death pension benefits as the veteran's surviving spouse is denied. C.W. SYMANSKI 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.