Ventris: DIC and What is a Surviving Spouse

Ventris v. McDonough, Case Number 19-1860, was decided August 31, 2021 and involves a claim for DIC and status as a surviving spouse.    

Specifically, the case dealth with 38 CFR Section 3.55(a)(2)(ii) a provision governing re-instatement of VA benefit eligibility when a deceased veteran’s spouse remarries and subsequently divorces. 

The veteran died in 1957 and the surviving spouse remarried in 1958.  That marriage ended in divorce and she was remarried and that marriage also ended in divorce in 1973.  In 2010 she applied for DIC benefits.  Benefits were denied due to her remarriages.

“The Board found that Ms. Ventris and Mr. Adcock were validly married to each other at the time of his death. R. at 7. However, the Board concluded that Ms. Ventris's April 1958 remarriage terminated her eligibility as the veteran's surviving spouse for DIC, accrued benefits, and death pension purposes, stating that "[b]efore January 1, 1971, the only exception permitting restoration of her eligibility as the surviving spouse . . . was if the remarriage was void, or annulled.”  Id. at *2.

The Court noted that prior to 1970 remarriage was an absolute bar to benefits.  Now, “remarriage of a surviving spouse generally bars the furnishing of VA benefits to such surviving spouse, but termination of that remarriage may reinstate eligibility for some benefits.”  Id. at *3.  The regulation actually reads:

“On or after January 1, 1971, remarriage of a surviving spouse terminated prior to November 1, 1990, or terminated by legal proceedings commenced prior to November 1, 1990, by an individual who, but for the remarriage, would be considered the surviving spouse, shall not bar the furnishing of benefits to such surviving spouse provided that the marriage . . . [h]as been dissolved by a court with basic authority to render divorce decrees[.]”

The Court addressed the history of the marriage bar and then agreed with the surviving spouse that

“context indicates that the disputed language, "[o]n or after January 1, 1971," refers to the date of the surviving spouse's claim for VA benefits after the termination of a remarriage. Specifically, the statutory and regulatory history reveal that each of the dates referenced in the regulation reflects the date of a statutory change regarding benefits eligibility upon termination of remarriage and the effective date for the award of benefits subsequent to changes in benefits eligibility. As is evident from the 1970 statutory changes, those dates can only meaningfully be interpreted to correspond to the date of a claim for survivor benefits.”

Id. at *7.

“Indeed, we see no indication that Congress intended to tie benefits eligibility for surviving spouses to dates of remarriage or divorce. To the extent that Congress contemplated the effective date of changes to benefits eligibility in the relevant statutes, the statutory changes make clear that the surviving spouse's date of remarriage was never the pertinent consideration.”

Id. at *7.

The Court then concluded that as her remarriage terminated in divorce and she filed for DIC in 2010, she is not barred from eligibility for DIC benefits.  Id. at *8.  The Court remanded for consideration of whether DIC was established.  The Court then noted the older death pension is not exempted from the remarriage bar.  Id. at *10. 

This is an important case to surviving spouses who have been denied DIC due to remarriages and opens the door to possible benefits. 

Decision by Chief Judge Bartley and Judges Pietsch and Toth.

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