Citation Nr: 0001756 Decision Date: 01/21/00 Archive Date: 01/28/00 DOCKET NO. 96-15 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether the appellant may be recognized as the veteran's surviving spouse for Department of Veterans Affairs (VA) purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The veteran had active service from April 1944 to June 1946. He died in November 1995. This appeal arises from a December 1995 administrative decision in which the Department of Veterans Affairs (VA) Regional Office (RO) denied the appellant's claim of entitlement to recognition as the surviving spouse of the veteran. The case was previously before the Board of Veterans' Appeals (Board) in August 1997, at which time it was remanded for additional evidentiary development. The development requested in that remand has been undertaken and the case is now ready for appellate review. FINDINGS OF FACT 1. The veteran and the appellant married in June 1984. The couple separated in 1984 and remained separated until the veteran's death eleven years later in 1995. 2. The veteran and the appellant were divorced in January 1988. 3. The veteran died in November 1995. 4. The appellant filed a claim of entitlement to VA death benefits as the surviving spouse of the veteran in December 1995. CONCLUSION OF LAW The veteran and the appellant were not married at the time of the veteran's death, and the appellant is not entitled to recognition as surviving spouse of the veteran for purposes of VA death benefits. The appellant has not established that she has basic eligibility for VA death benefits by virtue of status as the surviving spouse of the veteran, and accordingly she has not achieved claimant status. 38 U.S.C.A. § 101(3) (West 1991); 38 C.F.R. §§ 3.1(j), 3.50, 3.206 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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). It appears that the benefits sought in this case are improved death pension benefits. The United States Court of Appeals for Veterans Claims (Court) has held that VA is not obliged to determine whether a claim for spousal benefits is well grounded until the veteran or the spouse seeking benefits first submits preponderating evidence to show that he or she is a claimant under the law. Dedicatoria v. Brown, 8 Vet. App. 441, 443 (1995) (citing Brillo v. Brown, 7 Vet. App. 102, 105 (1994); Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991)). As in any case, the threshold question that must be resolved with regard to a claim of entitlement to VA benefits is whether the appellant has established basic eligibility. A claimed surviving spouse who fails to submit appropriate evidence never attains the status of claimant and if the appropriate evidence is not submitted, the claim fails due to the absence of legal merit or lack of entitlement under the law and, therefore, must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994); Sandoval v. Brown, 7 Vet. App. 7 (1994). Applicable Law and Regulations Except as provided in Section 3.52, "surviving spouse" means a person of the opposite sex whose marriage to the veteran meets the requirements of Section 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 the fault of the spouse; and (2) except as provided in Sec. 3.55, has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50. VA regulations provide that a recognized marriage is defined as one which is 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). The requirement that there must be continuous cohabitation from the date of marriage to the date of death of the veteran will be considered as having been met when the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. Temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation. 38 C.F.R. § 3.53(a). Factual Background The record reflects that the veteran and the appellant were married on June 11, 1984 in the state of Texas. The record shows that the veteran died in November 1995. In a VA application for compensation or pension filed by the veteran in October 1984, he indicated that he was married but separated. Also of record is a January 1985 statement from Gulf Coast Legal Foundation indicating that the veteran had filed for a divorce from the appellant. The veteran submitted a statement to the RO in May 1985 in which he indicated that he was not claiming a spouse in conjunction with VA benefits and stated that he had been separated from the appellant since 2 weeks after their marriage and that he had filed for a divorce. Improved Pension Eligibility Verification Reports dated in April 1986 and April 1987 and submitted by the veteran indicated that he was not married. In March 1987, the RO received correspondence from the appellant indicating that she was the legal wife of the veteran and that he had given her the right to apply for VA benefits. Also of record is a copy of an Original Petition for Divorce filed in October 1987 by the veteran in which it was stated that the veteran and the appellant were married on June 11, 1984 and that they ceased to live together on or about June 28, 1984. It was stated therein that the appellant was guilty of cruel treatment towards the veteran. The record reflects that in March 1988 the appellant was informed by the RO of a denial of apportionment of the veteran's VA benefits because she was unable to establish that they were married. The veteran's death certificate showed that he died in November 1995. The certificate listed his marital status as divorced. The certificate showed that the veteran's sister had been the informant of the veteran's death and the address given for the veteran reflected that he had been residing with his sister in Houston, Texas. The appellant filed an original claim for VA death benefits in December 1995 at which time she indicated that she had been married to the veteran from November 1984 until the time of his death. She indicated that she had not lived with the veteran continuously from the date of their marriage until the date of his death and explained that they had been separated for eleven years because they couldn't get along. The claim showed that the appellant was residing in Houston, Texas. In December 1995, the RO rendered an administrative determination the VA survivors benefits were denied since the evidence did not show continuous cohabitation. As part of the basis for that decision, the RO explained that although the Petition for Divorce by the veteran could be considered self-serving, it also showed that the claimant was not without fault in the separation. The appellant filed a timely Notice of Disagreement with that decision. The RO addressed the issue of continuous cohabitation between the appellant and the veteran in a March 1996 rating action. In that decision the RO determined that the records did not support the appellant's contention that she was not at fault in the separation. In support of that finding the RO cited the Petition for Divorce filed by the veteran in which it was indicated that she was guilty of cruel treatment. In a substantive appeal filed by the appellant in April 1996 she stated that she believed that even if the veteran had obtained a divorce from her, if he did not remarry another woman she thought she would get benefits because she was still his wife. The appellant provided testimony at a hearing held at the RO in July 1996. At that time, the appellant indicated that she married the veteran in June 1984 and that they separated in August or September 1984. She testified that he had found another woman, and that although she tried to reconcile with him he did not come back, resulting in an eleven year separation, ending at the time of his death. She testified that she had heard that the veteran had filed for a divorce from her, but that she had not learned of that until 1995. She testified that she believed that even if the veteran had obtained a divorce from her, if he did not remarry she thought she would still be his wife. She testified that she had visited him in a rest home many times before his death. The hearing officer found that the record did not support that the appellant was without fault in the separation and it was determined that the appellant was not the veteran's surviving spouse. The case came before the Board in August 1997, at which time it was remanded for additional evidentiary development, to include obtaining a copy of the divorce decree of the veteran and the appellant in the event that there was one. A copy if the final decree of divorce was added to the record. The document showed that the divorce became final in January 1988 in the District Court of Harris County, Texas. The document also showed that the appellant, although duly cited, did not appear and wholly made default. It was indicated in the decree that the court had jurisdiction over the case since the veteran had been a domiciliary of the Texas for a least a 6 month period preceding a filing of the action and a resident of the county in which the suit was filed for at least a 90 day period preceding the filing of the action. The appellant submitted a statement and two lay statements attesting to her marriage to the veteran. In an October 1999 Supplemental Statement of the Case/rating action the RO determined that the appellant was not entitled to recognition as the veteran's surviving spouse for VA purposes. Analysis Initially, the Board has determined that this issue is a matter in which the law, as opposed to the evidence, is dispositive of the issue. The Court has observed that the use of the statutory term "well grounded" should be confined to matters in which the evidence is dispositive. Therefore, in cases such as this, where the law and not the evidence is dispositive, 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 (Cf. FED R. CIV. P. 12(b)(6) ("failure to state a claim upon which relief can be granted"), as opposed to dismissing the case for failure to present a well-grounded claim. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The record shows that the appellant and the veteran were married in 1984 and divorced in 1988. At the time of the veteran's death in 1995, the appellant and the veteran were divorced. Accordingly she was not the surviving spouse of the veteran at the time of his death. 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). 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b). The applicable laws and regulations clearly require that the parties be lawfully married at the time of a veteran's death for the appellant to be considered a surviving spouse. Accordingly, since the appellant dos not meet the definition of a surviving spouse under the provisions of 38 C.F.R. § 3.50, the claim must be denied. The validity of a divorce decree, regular on its face, will be questioned by the VA only when such validity is put in issue by a party thereto or a person whose interest in a claim for VA benefits would be affected thereby. In cases where recognition of the decree is thus brought into question, where the issue is whether the veteran is single or married (dissolution of a subsisting marriage), there must be a bona fide domicile in addition to the standards of the granting jurisdiction respecting validity of divorce. 38 C.F.R. § 3.206 (in pertinent part). In this case, the record shows that the appellant and the veteran were both residents of Texas and were married and divorced in Texas. It is neither contended nor shown that the Texas Court lacked jurisdiction over the veteran and appellant or the subject matter at the time of the divorce proceedings in 1988. Despite the fact that a legal termination of the marriage was accomplished in 1988, the appellant apparently fails to understand or acknowledge that fact. Nevertheless, even though she was not present for the divorce proceedings she was duly cited; she did not appear and therefore wholly made default. Accordingly, the January 1988 divorce decree, representing a legal dissolution of the marriage is controlling, not the purported knowledge, lack of knowledge or belief of the appellant as to her marital status. The appellant has argued that she and the veteran were merely separated following their marriage in 1984. However, in fact, they had been divorced in excess of five years at the time of the veteran's death and they were not merely separately cohabiting. Accordingly, the provisions of 38 C.F.R. § 3.53 governing continuous cohabitation are inapplicable to the case in light of evidence of record establishing that the veteran and the appellant were divorced at the time of the veteran's death. In view of the foregoing, the Board concludes that the appellant has failed to submit credible and persuasive evidence demonstrating that she is the surviving spouse of the veteran. As such, the claim for entitlement to VA recognition as the surviving spouse of the veteran is denied due to the lack of entitlement under VA law. 38 U.S.C.A. §§ 101(3), 5107, 7104(c); Aguilar, 2 Vet. App. 21; 38 C.F.R. § 3.50. Sabonis v. Brown, 6 Vet. App. 426 (1994 ORDER The appellant may not be recognized as the veteran's surviving spouse for VA purposes. The benefits sought on appeal are denied. Barry F. Bohan Member, Board of Veterans' Appeals