38 C.F.R. § 3.55

Reinstatement of benefits eligibility based upon terminated marital relationships

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(a) Surviving spouse. (1) Remarriage of a surviving spouse shall not bar the furnishing of benefits to such surviving spouse if the marriage:

(i) Was void, or

(ii) Has been annulled by a court having basic authority to render annulment decrees, unless it is determined by the Department of Veterans Affairs that the annulment was obtained through fraud by either party or by collusion.

(2) 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:

(i) Has been terminated by death, or

(ii) Has been dissolved by a court with basic authority to render divorce decrees unless the Department of Veterans Affairs determines that the divorce was secured through fraud by the surviving spouse or by collusion.

(3) On or after October 1, 1998, remarriage of a surviving spouse terminated by death, divorce, or annulment, will not bar the furnishing of dependency and indemnity compensation, unless the Secretary determines that the divorce or annulment was secured through fraud or collusion.

(Authority: 38 U.S.C. 1311(e))

(4) On or after December 1, 1999, remarriage of a surviving spouse terminated by death, divorce, or annulment, will not bar the furnishing of benefits relating to medical care for survivors and dependents under 38 U.S.C. 1781, educational assistance under 38 U.S.C. chapter 35, or housing loans under 38 U.S.C. chapter 37, unless the Secretary determines that the divorce or annulment was secured through fraud or collusion.

(Authority: 38 U.S.C. 103(d))

(5) On or after January 1, 1971, the fact that a surviving spouse has lived with another person and has held himself or herself out openly to the public as the spouse of such other person shall not bar the furnishing of benefits to him or her after he or she terminates the relationship, if the relationship terminated prior to November 1, 1990.

(6) On or after October 1, 1998, the fact that a surviving spouse has lived with another person and has held himself or herself out openly to the public as the spouse of such other person will not bar the furnishing of dependency and indemnity compensation to the surviving spouse if he or she ceases living with such other person and holding himself or herself out openly to the public as such other person's spouse.

(Authority: 38 U.S.C. 1311(e))

(7) On or after December 1, 1999, the fact that a surviving spouse has lived with another person and has held himself or herself out openly to the public as the spouse of such other person will not bar the furnishing of benefits relating to medical care for survivors and dependents under 38 U.S.C. 1781, educational assistance under 38 U.S.C. chapter 35, or housing loans under 38 U.S.C. chapter 37 to the surviving spouse if he or she ceases living with such other person and holding himself or herself out openly to the public as such other person's spouse.

(Authority: 38 U.S.C. 103(d))

(8) On or after January 1, 1971, the fact that benefits to a surviving spouse may previously have been barred because his or her conduct or a relationship into which he or she had entered had raised an inference or presumption that he or she had remarried or had been determined to be open and notorious adulterous cohabitation, or similar conduct, shall not bar the furnishing of benefits to such surviving spouse after he or she terminates the conduct or relationship, if the relationship terminated prior to November 1, 1990.

(9) (i) On or after February 4, 2003, the remarriage of a surviving spouse after age 55 shall not bar the furnishing of benefits relating to medical care for survivors and dependents under 38 U.S.C. 1781, subject to the limitation in paragraph (a)(9)(ii) of this section.

(ii) A surviving spouse who remarried after the age of 55, but before December 6, 2002, may be eligible for benefits relating to medical care for survivors and dependents under 38 U.S.C. 1781 pursuant to paragraph (a)(9)(i) only if the application for such benefits was received by VA before December 16, 2004.

(iii) The remarriage of a surviving spouse after the age of 55 (at any time) shall not bar the furnishing of benefits under 38 U.S.C. chapter 13 to such person as the surviving spouse of the veteran.

(Authority: 38 U.S.C. 103).

(10)(i) On or after January 1, 2004, the remarriage of a surviving spouse after the age of 57 shall not bar the furnishing of benefits relating to medical care for survivors and dependents under 38 U.S.C. 1781, educational assistance under 38 U.S.C. chapter 35, or housing loans under 38 U.S.C. chapter 37, subject to the limitation in paragraph (a)(10)(ii) of this section.

(ii) A surviving spouse who remarried after the age of 57, but before December 16, 2003, may be eligible for medical care for survivors and dependents under 38 U.S.C. 1781, educational assistance under 38 U.S.C. chapter 35, or housing loans under 38 U.S.C. chapter 37 pursuant to paragraph (a)(10)(i) of this section only if the application for such benefits was received by VA before December 16, 2004.

(Authority: 38 U.S.C. 103)

(11) A surviving spouse will not be barred from benefits relating to Medal of Honor special pension under 38 U.S.C. 1562(a)(2) due to:

(i) Remarriage after the age of 57;

(ii) Remarriage terminated by death or divorce, unless the Secretary determines that the divorce or annulment was secured through fraud or collusion; or

(iii) Having lived with another person and held himself or herself out openly to the public as the spouse of such other person since the death of the veteran and after September 19, 1962, if he or she ceases living with such other person and holding himself or herself out openly to the public as the other person's spouse.

(Authority: 38 U.S.C. 103(d)(2) and 38 U.S.C. 103(d)(3))

(b) Child. (1) Marriage of a child shall not bar the furnishing of benefits to or on account of such child, if the marriage:

(i) Was void, or

(2) On or after January 1, 1975, marriage of a child terminated prior to November 1, 1990, shall not bar the furnishing of benefits to or for such child provided that the marriage:

(i) Has been terminated by death, or

(Authority: 38 U.S.C. 103; 105 Stat. 424, 106 Stat. 4322) Cross References:

Evidence. See §§ 3.206 and 3.207. Termination of marital relationship or conduct. See § 3.215.

[58 FR 32444, June 10, 1993, as amended at 60 FR 52863, Oct. 11, 1995; 64 FR 30245, June 7, 1999; 65 FR 43700, July 14, 2000; 71 FR 29084, May 19, 2006; 87 FR 68363, Nov. 15, 2022]

Notes of Decisions

Cited in 17 cases (5 in the last 5 years), 1955–2023 · leading case: Owings v. Brown, 8 Vet. App. 17 (Vet. App. 1995).

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Owings v. Brown, 8 Vet. App. 17 (Vet. App. 1995). · cites it 8× “The BVA noted that “[u]nder the former provisions of 38 C.F.R. § 3.55 , remarriage of a surviving spouse of a veteran did not bar receipt of VA benefits to such surviving spouse if her remarriage had been terminated by death or divorce”; however, the Board concluded, 1990 and…”

Dela Cruz v. Principi, 15 Vet. App. 143 (Vet. App. 2001). · cites it 2× “[§ ] 5107; 38 C.F.R. § 3.55 (a)(4).” R. at 25. II. ANALYSIS A.”

Frederick v. Shinseki, 684 F.3d 1263 (Fed. Cir. 2012). · cites it 2× “Citing 38 C.F.R. § 3.55 (a) and cases in which the Secretary restored benefits on the termination of the second marriage upon informal request by the surviving spouse, the Veterans Court stated that in those situa- tions, the surviving spouse was not required to file an…”

Cacatian v. West, 12 Vet. App. 373 (Vet. App. 1999). · cites it 2× “The Board also found that 38 C.F.R. § 3.55 (1998) did not apply because her relationship with Mr.”

Ruth Hill Frederick v. Eric K. Shinseki, 24 Vet. App. 335 (Vet. App. 2011). · cites it 2× “Further undercutting the Secretary’s suggested interpretation of the Public Law is the absence of any regulation requiring an application for reinstatement of DIC and a past practice that has not always required such an application. For example, the termination of a second…”

United States v. Strand, 6 C.M.A. 297 (1955). “” 38 CFR § 3.55 (a), (c) (1949 ed). On its face, therefore, if genuine, the letter could not possibly prejudice the Government in any legal way.”

Sharp v. United States, 82 Fed. Cl. 222 (Fed. Cl. 2008). · cites it 2× “Specifically, defendant cites 38 C.F.R. § 3.55 (a)(10), which provides in pertinent part: (10) Benefits for a surviving spouse who remarries after age 57.”

May v. McDonough, 61 F.4th 963 (Fed. Cir. 2023). “The regulations include: 38 C.F.R. § 3.55 Reinstatement of benefits eli- gibility based upon terminated marital rela- tionships— *** (b)(1) Marriage of a child shall not bar the furnish- ing of benefits to or on account of such child, if the marriage: (i) Was void, or (ii) Has…”

Flores v. Nicholson, 19 Vet. App. 516 (Vet. App. 2005). “§ 103 (d); see 38 C.F.R. §§ 3.55 (a), 3.215 (2005). Here, the appellant asserts that section 103(d)(3) warrants reinstatement of her DIC benefits on the grounds that she has stopped living with “another person” and has stopped holding herself out “openly to the public as that…”

Sylvia A. Ventris v. Denis McDonough (Vet. App. 2021). · cites it 15× “This matter was referred to a panel of the Court to address the proper interpretation of the language "[o]n or after January 1, 1971," as used in 38 C.F.R. § 3.55 (a)(2)(ii), a provision governing reinstatement of VA benefits eligibility when a deceased veteran's spouse…”

Ransom v. McDonough (Fed. Cir. 2022). · cites it 3× “3d at 1273 ; see 38 C.F.R. § 3.55 (a)(10)(ii). B. Mrs. Ransom’s DIC Claim In August 2010, the Department of Veterans Affairs (“VA”) amended its regulations to establish presumptive service connection for ischemic heart disease based on Case: 21-1637 Document: 21 Page: 4 Filed:…”

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— 38 C.F.R. § 3.55(b)(2) — 1 case

Sylvia A. Ventris v. Denis McDonough (Vet. App. 2021). “This matter was referred to a panel of the Court to address the proper interpretation of the language "[o]n or after January 1, 1971," as used in 38 C.F.R. § 3.55 (a)(2)(ii), a provision governing reinstatement of VA benefits eligibility when a deceased veteran's spouse…”

— 38 C.F.R. § 3.55(b)(3) — 1 case

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