Citation Nr: 1018711 Decision Date: 05/20/10 Archive Date: 06/04/10 DOCKET NO. 09-31 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to recognition as an eligible applicant for the purpose of receiving dependency and indemnity compensation (DIC). 2. Entitlement to recognition as an eligible applicant for the purpose of receiving non-service connected death pension. 3. Whether the appellant may be recognized as an eligible applicant for the purpose of asserting a claim of entitlement to service connection for nerve damage of the bilateral feet for accrued benefits purposes and, if so, whether accrued benefits are warranted. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran had active service from October 1967 to May 1969. He died on August [redacted], 2008. The appellant seeks benefits as the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 decision letter and a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas. The appellant had a hearing before the Board in April 2010 and the transcript is of record. The issue of entitlement to service connection for nerve damage to the bilateral feet for accrued benefits purposes is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The VA will notify the appellant if further action is required on her part. FINDINGS OF FACT 1. The Veteran and the appellant were married on August [redacted], 2008. 2. The Veteran died on August [redacted], 2008. CONCLUSIONS OF LAW 1. The criteria for recognition of the appellant as the Veteran's surviving spouse or other eligible applicant for purposes of establishing entitlement to dependency and indemnity compensation (DIC) are not met. 38 C.F.R. §§ 3.1(j), 3.50, 3.54(c) (2009). 2. The criteria for recognition of the appellant as the Veteran's surviving spouse or other eligible applicant for purposes of establishing entitlement to non-service connected death pension are not met. 38 C.F.R. §§ 3.1(j), 3.50, 3.54(a) (2009). 3. The criteria for recognition of the appellant as the Veteran's surviving spouse for purposes of establishing entitlement to assert a claim for accrued benefits are met. 38 C.F.R. §§ 3.1(j), 3.50, 3.1000 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, provides, among other things, for notice and assistance to claimants under certain circumstances. Congress, in enacting the statute, noted the importance of balancing the duty to assist with "the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim." Mason v. Principi, 16 Vet. App. 129, 132 (2002). When the law and not the evidence are dispositive of the claim, the VCAA is not applicable. See id. at 132. In this case, VCAA notice is not required because the underlying issue presented involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). For these reasons, the Board concludes that no further notification or development of evidence is required. Eligibility of Applicant Only eligible applicants are entitled to VA benefits. The appellant in this case seeks recognition as an eligible applicant as the Veteran's surviving spouse in order to obtain Dependency and Indemnity Compensation (DIC) benefits, death pension benefits, and accrued benefits. The essential facts in this case are not in dispute. The appellant and the Veteran were married on August [redacted], 2008. The Veteran's death certificate shows that he died on August [redacted], 2008, a mere 21 days after their marriage. This claim is unusual in that it is not in dispute that the appellant was the Veteran's legal spouse at the time of his death. The appellant produced a valid marriage certificate from the State of Arkansas indicating the appellant's legal marriage to the Veteran on August [redacted], 2008. Regrettably, the Veteran died a mere 21 days later. The crucial inquiry then is whether the appellant's 21 day marriage to the Veteran qualifies her as the "surviving spouse" for purposes of receiving VA benefits. With regard to VA DIC and death pension benefits, the Board concludes it does not. A surviving spouse for VA purposes is defined as a person of the opposite sex whose marriage to a Veteran meets the requirements of 38 C.F.R. § 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 fault of the spouse; and (2) has not remarried or has not since the death of the Veteran lived with another person of the opposite sex and held himself/herself out openly to the public to be the spouse of such other person. 38 C.F.R. §§ 3.50(b), 3.53 (2009). A surviving spouse may qualify for pension, compensation, or dependency and indemnity compensation under the appropriate circumstances. 38 C.F.R. § 3.54 (2009). VA death pension benefits may be paid to a surviving spouse who was married to the Veteran: (1) one year or more prior to the Veteran's death; or (2) for any period of time if a child was born of the marriage, or was born to them before the marriage; or (3) in the case of World War II Veterans, prior to January 1, 1957 (or May 8, 1985, in the case of Vietnam era Veterans). 38 U.S.C.A. § 1541 (West 2002 & Supp. 2009); 38 C.F.R. § 3.54(a) (2009) (emphasis added). VA Dependency and Indemnity Compensation (DIC) benefits are payable to a surviving spouse who was married to the Veteran: (1) within 15 years of the end of the period of service in which the injury or disease causing the Veteran's death was incurred or aggravated; or (2) one year or more; or (3) for any period of time if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C.A. § 1304 (West 2002 & Supp. 2009); 38 C.F.R. § 3.54(c) (2009) (emphasis added). After considering all of the evidence of record, the Board finds for purposes of establishing entitlement to DIC or death pension benefits, the appellant is not an eligible applicant because her marriage to the Veteran does not satisfy the marriage date criteria in 38 C.F.R. § 3.54(a), (c). The appellant claims that she lived with the Veteran since September 2006 and always intended on getting married. They chose to wait until August 2008 for numerous reasons, but mainly because of the Veteran's health and the appellant's apprehension of caring for a sick husband. She essentially claims that although they did not officially marry until shortly before the Veteran's death, she believes she should be recognized as the Veteran's surviving spouse for VA benefit purposes because she had been together with the Veteran since 2006. She indicated further in a December 2008 statement that people were aware they were getting married and the Veteran even referred to the appellant as his wife from time to time prior to getting legally married. Turning to the appellant's equitable arguments, the Board has considered the possibility of whether a common-law marriage could have been formed prior to the legal marriage in 2008. On close review of the record, however, there is simply no evidence to support this. At the outset, the Board notes that the state of Arkansas does not recognize common-law marriage. Regardless of this fact however, VA may still deem the marriage as valid for VA purposes. The General Counsel held that lack of residence in a jurisdiction recognizing a common-law marriage is not necessarily a bar to establishment of a common-law marriage for the surviving spouse. VAOPGCPREC 58-91 (June 17, 1991), published at 56 Fed. Reg. 50,151 (1991). This is because under 38 C.F.R. § 3.52, the common- law marriage could be "deemed valid" on the theory that the surviving spouse could have entered into the purported common-law marriage without knowledge of the fact that there was an impediment to the marriage. Colon v. Brown, 9 Vet. App. 104 (1996). The impediment referred to here would be the jurisdiction's nonrecognition of a common- law marriage. For VA purposes, an otherwise invalid marriage may be "deemed valid" if certain conditions are met. 38 C.F.R. § 3.52. These conditions are: (a) the marriage occurred 1 year or more before the Veteran died (or at any time if a child was born to them before or during the marriage); (b) the claimant must have entered into the marriage with no knowledge of the legal impediment, (c) the claimant must have cohabited with the Veteran continuously from the date of marriage to the date of his death, and (d) no claim has been filed by a legal surviving spouse who has been found entitled to benefits. All four of the above criteria must be satisfied for VA to deem an otherwise invalid marriage as valid. Here, it cannot be found that a common-law marriage was ever entered into as the appellant and the Veteran did not consistently hold themselves out as married, common-law or otherwise, prior to their actual August 2008 marriage. Indeed, the appellant has repeatedly indicated both in written statements and oral testimony that they lived together, but were not married prior to August 2008. Although she claims the Veteran sometimes referred to her as his wife prior to marriage, she also makes it clear that people knew the Veteran was her fiancé and that it was "no secret...that [they] were going to be married...." (Emphasis added). During her hearing before the Board in April 2010, the appellant further testified that she hesitated getting legally married because she had reservations about caring for a sick husband. Accordingly, it is clear the appellant and the Veteran did not consistently hold themselves out to be married prior to August [redacted], 2008. For all of these reasons, the Board cannot find the existence of a common-law marriage prior to the parties' legal marriage on August [redacted], 2008. In sum, the Board finds that basic eligibility to receive VA DIC and death pension benefits as the Veteran's surviving spouse is not warranted by law. The Court has held that in cases such as this, where the law is dispositive, the claim should be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board has heard the appellant's contentions, and is greatly sympathetic to her position. The appellant's arguments and the law have been considered in the most favorable light possible, but for the reasons described above, the benefits sought with regard to her DIC and death pension claims are simply precluded by law. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002 & Supp. 2009); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429 (1992) citing Office of Personnel Management v. Richmond, 496 U.S. 414 (1990). In contrast, VA accrued benefits are payable to a surviving spouse whose marriage meets the requirements of 38 C.F.R. § 3.1(j) or 38 C.F.R. § 3.52. Under 38 C.F.R. § 3.1(j) 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. In this case, the appellant's marriage to the Veteran in August 2008 is valid under the law of Arkansas and, therefore, satisfies 38 C.F.R. § 3.1(j). For accrued benefits claims, where the marriage meets the requirements of 38 C.F.R. § 3.1(j), as is the case here, date of marriage and continuous cohabitation are not factors. 38 C.F.R. § 3.1000(d)(1) (2009). Accordingly, the fact that the appellant's marriage to the Veteran was brief is irrelevant for purposes of establishing eligibility to assert a claim for VA accrued benefits. The undisputed facts indicate the appellant had a legally valid marriage to the Veteran at the time of his death and, therefore, the date of the actual marriage is not a factor in determining eligibility for VA accrued benefits. Id. In other words, 38 C.F.R. § 3.54, which precludes the appellant's eligibility to assert entitlement to DIC and death pension benefits, is inapplicable to VA accrued benefits claims. What is of consequence with regard to accrued benefits claims is merely whether the appellant was legally married to the Veteran at the time of his death. In this case, the undisputed facts indicate she was and, therefore, this aspect of the appellant's claim may be granted. ORDER Recognition of the appellant as the Veteran's surviving spouse for VA DIC benefit purposes is denied. Recognition of the appellant as the Veteran's surviving spouse for VA death pension purposes is denied. Recognition of the appellant as the Veteran's surviving spouse for VA accrued benefits purposes is granted. REMAND The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, no letter was sent to the appellant explaining the law, regulations and evidence necessary to substantiate her claim. Corrective action is required. The Board notes, with regard to accrued benefits claims, only evidence in the file when the Veteran died may be considered. The VA is required, however, to obtain any VA or other federal record that existed at the time of the Veteran's death because such records are considered to have been in the "constructive possession" of the VA at the time of the Veteran's death. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In this case, the claims folder contains VA outpatient treatment records through July 2008. The Veteran died in August 2008. Accordingly, the RO should take this opportunity to obtain any VA medical records from July 2008 through August 2008 to ensure the claims folder is complete. Accordingly, the case is REMANDED for the following action: 1. The RO must ensure that all VCAA notice obligations are satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A, implementing regulations, interpretative precedent Court decisions, and any other applicable legal precedent. In particular, the appellant should be informed of how to establish her claim of entitlement to service connection for nerve damage of the bilateral feet for accrued benefits purposes under 38 C.F.R. § 3.1000. 2. Obtain the Veteran's medical records from the VA Medical Center in No. Little Rock, Arkansas for any hospitalization or medical treatment from July 2008 to August 2008. All efforts to obtain VA records should be fully documented and the VA facility must provide a negative response if records are not available. 3. The RO should then readjudicate the appellant's claim, recognizing her as an eligible applicant for accrued benefits. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and her representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002). ______________________________________________ WILLIAM YATES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs