BVA9501042 
DOCKET NO.  93-12 388     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas

THE ISSUE

Entitlement to recognition as the surviving spouse of the veteran
for purposes of Department of Veterans Affairs (VA) benefits.

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars of the
United States

ATTORNEY FOR THE BOARD

Milo H. Hawley, Counsel

INTRODUCTION

The veteran, who retired in August 1966 after more than 27 years
of active service, died in May 1987.

This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a December 1992 decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Little Rock,
Arkansas.

CONTENTIONS OF APPELLANT ON APPEAL

It is contended that, although the appellant was divorced from
the veteran at the time of his death, she had continued to take
care of him from the time of their divorce until his death.

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 a preponderance of the evidence is against the claim
for recognition of the appellant as the surviving spouse of the
veteran for purposes of VA benefits.

FINDING OF FACT

The veteran and the appellant were married in March 1947 and
divorced in December 1976.  They did not remarry prior to the
veteran's death in May 1987.

CONCLUSION OF LAW

The appellant is not entitled to recognition as the surviving
spouse of the veteran for purposes of VA benefits.  38 U.S.C.A.
§§ 101, 103 (West 1991).

REASONS AND BASES FOR FINDING AND CONCLUSION

The concept of "well-grounded" applies to the character of the
evidence presented by a claimant. Since in this case there is no
dispute as to the evidence (specifically, the veteran and the
appellant were married in March 1947 and divorced in December
1976, and did not remarry prior to the veteran's death) but only
as to the law and its meaning, the concept of "well-grounded" is
not found to be applicable.  Rather, it is found the appellant
has failed to state a claim on which relief can be granted.
Sabonis v. Brown, 6 Vet.App. 426 (1994).

The evidence reflects that the veteran and the appellant were
married in March 1947 and divorced in December 1976.  There is no
contention that they thereafter remarried, and the State in which
they apparently  resided from the time of their divorce until the
veteran's death, Arkansas, does not recognize the creation of
common law marriage within that State. Rather, the contention is
that the grounds for the divorce were justifiable because of the
veteran's physical and mental abuse of the appellant, and the
appellant took care of the veteran during the last years of his
life.

In order to be recognized for VA purposes as a surviving spouse
of the veteran, the appellant must have been the veteran's spouse
at the time of his death and have lived continuously with him
from the date of their marriage to the date of the veteran's
death.  38 U.S.C.A. § 101(3).

Although the appellant may have had very valid grounds for her
divorce from the veteran and provided care for him during the
last years of his life, they were divorced many years prior to
his death in May 1987.  Thus, the appellant may not be recognized
as the veteran's surviving spouse because she was not married to
him at the time of his death.  Consequently, the appellant has
failed to state a claim on which relief can be granted.

ORDER

Entitlement to recognition as the surviving spouse of the veteran
for purposes of VA benefits 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.