Citation Nr: 1043681 Decision Date: 11/19/10 Archive Date: 11/24/10 DOCKET NO. 99-23 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to dependency and indemnity compensation (DIC) benefits, to include whether the appellant's marriage to the Veteran satisfies the one-year marriage eligibility requirement. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Jessica J. Wills, Counsel INTRODUCTION The Veteran served on active duty from October 1948 to September 1954, and from December 1957 to November 1958. He died in September 1998, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In January 2002, the Board issued a decision denying entitlement to DIC benefits on the basis that the appellant's marriage to the Veteran did not satisfy the one-year marriage eligibility requirement. The appellant then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in a March 2004 Order, the Court vacated the January 2002 Board decision and remanded the matter to the Board. The Board subsequently remanded the case for further development in September 2004, August 2007, and June 2010. That development was completed, and the case was referred to the Board for appellate review. A hearing was held on August 14, 2001, before a Veterans Law Judge, in Indianapolis, Indiana, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2). A transcript of the hearing testimony is in the claims file. A letter was sent to the appellant in July 2007 informing her that the Veterans Law Judge who had conducted the August 2001 hearing was no longer employed by the Board. The letter notified the appellant that she had a right to another hearing, and it was requested that she complete and return a form indicating whether she wished to have another hearing, and if so, what type of hearing. It was specifically noted that the Board would proceed if she did not respond within 30 days. To date, the appellant has not responded to that letter, and therefore, the Board will proceed with a decision in this case. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. The Veteran served on active duty from October 1948 to September 1954, and from December 1957 to November 1958. 3. The appellant has asserted that she and the Veteran began living together in May 1996. 4. Common-law marriages are not recognized in Indiana. 5. The appellant has testified that she was not aware that common-law marriage was not recognized in Indiana; however, her testimony establishes that there was no mutual present agreement to enter into a marriage, constituted immediately, at the time they began living together or at any time prior to September [redacted], 1997. 6. The Veteran and the appellant were officially married on September [redacted], 1997. 7. The Veteran died on September [redacted], 1998. 8. There was no child born of the relationship between the Veteran and the appellant. CONCLUSION OF LAW The appellant's marriage to the Veteran does not satisfy the marriage eligibility requirements for DIC benefits. 38 U.S.C.A. §§ 101(3), 103(c), 1102, 1304, 5103A (West 2002); 38 C.F.R. §§ 3.1, 3.5, 3.50, 3.52, 3.54, 3.205, 3.211 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the Board does acknowledge that the RO did not provide the appellant with adequate notice prior to the initial decision in April 1999. Nevertheless, in compliance with the prior remands, the RO did send the appellant letters in April 2000, May 2001, October 2004, October 2007, and June 2010, which did inform her about the evidence necessary to substantiate her claim and the division of responsibilities in obtaining the evidence. The Board finds that any defect with respect to the timing of the notice requirement was harmless error. In this regard, the Board notes that, while notice provided to the appellant was not given prior to the first agency of original jurisdiction (AOJ) adjudication of the case, notice was provided by the AOJ prior to the transfer and certification of the appellant's case to the Board, and the content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). After the notice was provided, the appellant's claim was readjudicated in a supplemental statement of the case (SSOC). Prickett v. Nicholson, 20 Vet. App. 370, 377- 78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating the claim and notifying claimant of such readjudication in the statement of the case). The claimant has been provided with every opportunity to submit evidence and argument in support of her claim and to respond to VA notices, and she has taken full advantage of these opportunities, submitting evidence and argument in support of her claim. Viewed in such context, the furnishing of notice after the decision that led to this appeal did not compromise the essential fairness of the adjudication. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Conway v. Principi, 353 F.3d 1369, 1373 (Fed. Cir. 2004). The appellant has had a "meaningful opportunity to participate effectively," Dingess/Hartman, and the Board finds that the present adjudication of the appeal will not result in any prejudice to the appellant. Therefore, with respect to the timing requirement for the notice, the Board concludes that to decide this appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the appellant in the notice letters about the information and evidence that is necessary to substantiate her claim for DIC benefits. Specifically, the April 2000 letter stated the DIC is payable to an en eligible survivor of a Veteran whose death is related to service. It was noted that the appellant's claim had been denied because she did not meet the requirements for a surviving spouse, which are one who was married to a Veteran: before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the death of the Veteran was incurred or aggravated; for one year or more; or, any period of time if a child was born of the marriage or was born to them prior to the marriage. The October 2004 letter also indicated that the evidence must show that the Veteran died while on active duty or died from a service-connected injury or disease. It was noted that DIC may be paid if the Veteran was continuously rated totally disabled due to service-connected disabilities for at least 10 years before his death. The appellant was informed that she needed evidence showing that she is the unmarried surviving spouse of the Veteran, and she was advised to submit statements regarding their marital status, such as the dates and places where the Veteran lived, the amounts and dates of the Veteran's contributions to her support, and whether they ever applied for divorce or annulment. The October 2007 letter further stated that entitlement to DIC requires evidence showing that the Veteran died while on active service from a service-connected injury or disease or that he died from a nonservice-connected injury or disease and was receiving compensation for a totally disabling service-connected disability for at least 10 years immediately before his death; since his release form active duty and for at least 5 years immediately preceding his death; or, for at least one year before death if the Veteran was a former prisoner of war who died after September 20, 1999. The letter noted that she must have married to the Veteran before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the death of the Veteran was incurred or aggravated; for one year or more; or, any period of time if a child was born of the marriage or was born to them prior to the marriage. The October 2007 letter also contained the provisions of 38 U.S.C.A. § 5103(A) and 38 C.F.R. §§ 3.5, 3.50, 3.54, 3.205, and 3.211. In addition, the June 2010 letter included a dependent fact sheet and the provisions of 38 U.S.C.A. § 5103 and 38 C.F.R. §§ 3.5, 3.50, 3.52, 3.54, 3.159 3.205, and 3.211. Additionally, the September 1999 statement of the case (SOC) and March 2007, March 2010, and September 2010 supplemental statements of the case (SSOC) notified the appellant of the reasons for the denial of her application and, in so doing, informed him her the evidence that was needed to substantiate her claim. The September 1999 SOC included the provisions of 38 C.F.R. §§ 3.50 and 3.54, and the March 2007 SSOC contained 38 C.F.R. §§ 3.52, 3.53, 3.54, and 3.205. Similarly, the March 2010 SSOC provided the appellant with 38 C.F.R. §§ 3.50 and 3.54, and the September 2010 SSOC included 38 C.F.R. §§ 3.5, 3.50, 3.52, 3.54, 3.205, and 3.211. In addition, the RO notified the appellant in the notice letters about the information and evidence that VA will seek to provide. In particular, the May 2001, October 2004, October 2007, and June 2010 letters indicated that reasonable efforts would be made to help her obtain evidence necessary to support her claim, including that VA would request any pertinent records held by Federal agencies, such as military records, and VA medical records. The RO also informed the appellant about the information and evidence that she was expected to provide. Specifically, the May 2001, October 2004, October 2007, and June 2010 letters notified the appellant that she must provide enough information about records so that they could be requested from the agency or person that has them. The May 2001 letter also requested that she complete and return the enclosed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, if there were any private medical records that she would like VA to obtain on her behalf. The June 2010 letter requested that she complete and return VA Form 21-470, Statement of Marital Relationship, and VA Form 21-4171, Supporting Statement Regarding Marriage. That letter also requested information regarding any reasons why she and the Veteran would not have been able to marry and whether they lived continuously from the date of marriage to his death. She was also asked to submit copies of birth certificates for all children born of the marriage. In addition, the May 2001, October 2004, October 2007, and June 2010 letters informed her that it was her responsibility to ensure that VA received all requested records that are not in the possession of a Federal department or agency. Further, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the appellant was provided with notice of the type of evidence necessary to establish a disability rating and an effective date. In this regard, the Board notes that the October 2007 and June 2010 letters explained how disability ratings and effective dates were determined. In addition, the duty to assist the appellant has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the appellant's claim. The claims file also contains copies of the Veteran's marriage certificates and death certificate, as well as affidavits from individuals attesting to the marital status of the Veteran and appellant. The appellant also testified at a hearing before the Board in August 2001, and as previously noted, she was offered another opportunity in July 2007 to have an additional hearing. VA has further assisted the appellant throughout the course of this appeal by providing her a SOC and SSOCs, which informed her of the laws and regulations relevant to her claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the appellant in this case. Law and Analysis Governing law provides that Dependency and Indemnity Compensation (DIC) benefits and non-service connected death pension benefits may be paid to the surviving spouse of a Veteran if certain requirements are met. 38 U.S.C.A. §§ 1304, 1310, 1311, 1318, 1541 (West 2002). VA death benefits may be paid to a surviving spouse who was married to the Veteran: (1) before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the death of the Veteran was incurred or aggravated; (2) for 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. §§ 1102, 1304, 1541; 38 C.F.R. § 3.54. To be recognized as the Veteran's surviving spouse for the purpose of establishing entitlement to VA death benefits, the appellant must be a person of the opposite sex whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of a Veteran at the time of the Veteran's death. The appellant must also have 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. In addition, to be recognized as a surviving spouse, a claimant cannot have remarried 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 to the public to be the spouse of such other person. 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b)(1), 3.53. The remarriage of the surviving spouse of a Veteran shall not bar the furnishing of benefits to such person as the surviving spouse if the remarriage is void or has been annulled by a court of competent jurisdiction, unless the annulment was secured through fraud. 38 U.S.C.A. § 103(d)(1). Additionally, remarriage shall not bar the furnishing of DIC benefits, among others, if the remarriage has been terminated by death or divorce, unless the divorce is secured through fraud. 38 U.S.C.A. § 103(d)(2). The law was amended effective from January 1, 2004, to also provide that remarriage after age 57 of the surviving spouse of the Veteran shall not bar the furnishing of DIC benefits, among others, to the surviving spouse of the Veteran. Veterans Benefits Act of 2003, Pub. L. No. 108-183, 117 Stat. 2652, 2673 (2003). For VA benefits purposes, a 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. 38 C.F.R. § 3.1(j). A marriage can be established by several types of evidence, including a copy or abstract of the public record of marriage, a copy of the church record of marriage containing sufficient data, an official report from service department as to marriage which occurred while the Veteran was in service, the affidavit of the clergyman or magistrate who officiated, the original certificate of marriage, and affidavits or certified statements of two or more eyewitnesses to the ceremony. 38 C.F.R. § 3.205(a)(1). In this case, the Veteran served on active duty from October 1948 to September 1954 and from December 1957 to November 1958. A marriage certificate indicates that the appellant and Veteran were married on September [redacted], 1997. As such, they were married almost 29 years following the Veteran's separation from service. The record reflects that it was the appellant's third marriage and the Veteran's third marriage. A divorce decree and a death certificate are on file for the Veteran's prior marriages. In an October 1998 rating decision, the RO found that the Veteran died as a result of a service-connected disability. In March 1999, the appellant filed an application for DIC benefits by a surviving spouse, but in an April 1999 decision, the RO denied the appellant's claim on the basis that she had not been married to the Veteran for one year prior to his death and there were no children born of the marriage. At a hearing before the Board, the appellant maintained that she and the Veteran had lived together in a common-law marriage in Indiana since May 1996 and contended that the time living together should count toward extending her legal marriage by the amount of time to satisfy the statutory one-year requirement. She indicated that they first lived together as husband and wife in May 1996, but then went on to state that the Veteran lived in one place and that she lived in another. She remarked that he died on the Thursday before what would have been their one-year anniversary on Saturday, but she stressed that they had been together since 1996. She also noted that they had applied for their marriage license on September 5, 1997, and intended to marry immediately, but she stated that the Veteran was hospitalized during the following weekend when they had planned to marry. Upon questioning as to whether she and the Veteran considered themselves to be husband and wife at the time they began living together, the appellant responded as follows: Sort of much. When he said well are we going to get married or what, I'd go why should we get married? What's wrong with just living together? You know. So I had just a bad marriage my first marriage. My second husband I lived with him 12 years before we got married. Then we got married. When asked what prompted them to get married officially, the appellant stated: Because [the Veteran] really wanted to. . . . He says well then why not get married. I'm thinking what's wrong with just living together, you know. He wanted- -he really wanted to get married so I said okay.... Oh he had asked me when we first met about getting married and I said well maybe some day we will, so then finally decided that we would. When asked if she knew whether common-law marriages were recognized by Indiana, the appellant responded: It used to, I don't really know now. They've changed so many times. When asked again if she considered herself to be married to the Veteran when she began living with him, she stated: Oh yeah because he bought me a ring already and I was wearing that.... He said let's just tell everybody we're married.... Yes, we considered we were man and wife. The appellant indicated that they presented themselves to the community as though they were married, but that she did not care what anyone thought about them living together. Based on the foregoing, the appellant did not legally marry the Veteran until almost 29 years after his discharge from military service. Therefore, the criteria that the surviving spouse be married to the Veteran before the expiration of 15 years from service separation is not applicable in this instance. Further, after review of the record, the Board finds that the appellant does not meet the eligibility requirement for DIC benefits because she was married to the Veteran for less than one year, from September [redacted], 1997, until his death on September [redacted], 1998, and there were no child born to them. First, the appellant reluctantly concedes that she married the Veteran less than one year prior to his death. Regardless of the way the time is calculated, there is no basis on which to establish that the Veteran and the appellant were married for one year. A review of the evidence shows that the Veteran's death occurred two days short of the one-year requirement, as they married on September [redacted], 1997, and he died on September [redacted], 1998. The Veteran's son (the appellant's step-son) asserted that the Veteran died in the late evening and that, if had he lived another two hours or so, he and the appellant would have lived together every day of the calendar year. However, even considering the contention of the Veteran's stepson, the appellant and the Veteran would still have been married for less than one year, as they would have been one day short. Simply put, the fact remains the Veteran and the appellant were not married for a one year period, regardless of how the time is calculated. The Board is sympathetic to the fact that the Veteran died just short of the one-year marriage requirement; however, there is no reasonable way to calculate the dates such that the marriage could satisfy the one-year requirement mandated under the regulations. The Board has also considered whether the time the Veteran and the appellant cohabited could be used to extend the time they were together under the theory of a common-law marriage. VA regulations define marriage as "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." 38 C.F.R. § 3.1(j) (2010). In this case, the Veteran and the appellant were married and lived in Indiana; therefore, the law of Indiana is controlling. Indiana does not recognized common-law marriages and has not done so since 1958. Specifically, under Indiana law "a marriage is void if the marriage is a common-law marriage that was entered into after January 1, 1958." Indiana Code § 31-11-8-5. Further, Indiana courts have held that no common-law marriage existed when a couple had lived together for two years, had received a marriage license, and were going to be married in six days, except that the woman was killed in an automobile accident. See Manczunski v. Frye, 689 N.E.2d 473 (Ind. App. 1997). The court specifically found the fact that the couple lived together for two years was not legally significant because there could be no common-law marriage in Indiana unless it was entered into prior to 1958. In the case of Mayes v. Mayes, 84 Ind. App. 90, 147 N.E. 630 (1925), an Indiana court said: We believe the existence of a common-law marriage is dependent upon there being a contract of marriage between the parties in words of the present tense; that there must be mutuality to such contract and that the minds of both parties must meet in mutual consent to said marital status. With regard to common-law marriages, a distinction is made between contracts where the parties take each other in the present tense, implying that the marital relation is constituted immediately, and contracts which imply no more than that the parties will marry each other at a later time. The showing that a man and woman cohabited together and were known as husband and wife is not alone sufficient to establish common-law marriage, but it must also be shown that there was a present agreement between the man and woman to take each other as husband and wife. Estate of Dittman v. Biesenbach, Admr. etc., 124 Ind. App. 198, 115 N.E. 2d 125 (1953) (there must be a contract, and it must arise from words in the present tense). Words evidencing only the intention to be married in the future are ineffectual even where followed by cohabitation. Cohabitation, reputation, tax returns, insurance provisions, and the birth of a child do not constitute a present contract of marriage. Anderson v. Anderson, 235 Ind. 113, 131 N.E.2d 301 (1956). The appellant in this case has not alleged that there was any contract of marriage in the present tense prior to September [redacted], 1997, and the evidence when viewed in favor of the appellant with all reasonable inferences that could be drawn therefrom, fails to show such a contract. The testimony of the appellant herself affirmatively proves there never was a contract in the present tense to be married prior to September [redacted], 1997. In fact, her testimony merely corroborates that she and the Veteran did not consider themselves to be married in the present tense prior to September [redacted], 1997, and that prior to this date, they simply agreed that they would marry each other at a later time. As noted above, words evidencing only the intention to be married in the future are ineffectual even where followed by cohabitation. The evidence does not establish the fact of an actual contract of marriage prior to September [redacted], 1997. Based on the foregoing, regardless of the appellant's testimony that she and the Veteran lived together for some eighteen months prior to their legal marriage, there is no basis on which to include the cohabitation time in order to satisfy the one-year marriage requirement for DIC benefits. Indeed, the Board notes that the marriage license dated three weeks prior to their legally-recognized marriage actually lists the Veteran living in one county and the appellant living in another county. Nevertheless, even accepting the appellant's testimony that she and the Veteran were living together at the time of their marriage, the fact remains that Indiana law does not recognize the cohabitation time as a legal marriage. Therefore, the time the Veteran and the appellant spent living together cannot be included in the one-year marriage requirement calculation. The Board has further considered that in cases where there is a legal impediment to entering into a marriage, such as if common- law marriage is not recognized in a jurisdiction, an otherwise invalid common-law marriage could be "deemed valid" if the appellant was unaware of the legal impediment. See Colon v. Brown, 9 Vet. App. 104, 107-108 (1996); VAOPGCPREC 58-91 (July 7, 1991) (the fact that a jurisdiction does not recognize common-law marriage is considered a type of legal impediment). Where an attempted marriage of a claimant to the Veteran was invalid by reason of a legal impediment, the marriage will nevertheless be deemed valid if: (1) the marriage occurred one year or more before the Veteran died (or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage); (2) the claimant entered into the marriage without knowledge of the impediment; (3) the claimant cohabited with the Veteran continuously from the date of marriage to the date of his or her death; and, (4) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the Veteran's death. See 38 C.F.R. § 3.52 (2010). The evidence, however, does not support a "deemed valid marriage" in this case. Significantly, the appellant does not dispute that they were not legally married prior to September [redacted], 1997. She testified that the Veteran desired to get married and even encouraged her to marry him. Despite her testimony that she thought there was nothing wrong with just living together and that she had a difficult situation during her first marriage, she essentially conceded that her cohabitation with the Veteran did not constitute a marriage, which is the reason why they subsequently agreed to marry and had the marriage ceremony. Prior to the marriage ceremony on September [redacted], 1997, there was no more than an agreement to be married in the future. Therefore, there is no basis on which to establish a "deemed valid marriage." This is consistent with an October 1998 VA Form 21-686c, Declaration of Status of Dependents, which was submitted by the Veteran approximately three weeks after their legal marriage. In that document, he added the appellant as his dependent and reported a marriage date of September [redacted], 1997, which effectively set the date of her dependency. In short, even though the appellant contends that she was unaware that common-law marriages were not recognized in Indiana, she did not enter into a common-law marriage with the Veteran prior to September [redacted], 1997, inasmuch as there was no present contract by which she and the Veteran entered into a marital relationship, constituted immediately, prior to that date. Prior to September [redacted], 1997, the appellant and the Veteran did no more than agree to marry each other at a later time. Because the Veteran died within a year after the marriage and no child was born of their relationship, the appellant does not meet the criteria necessary for establishing status as a surviving spouse for VA purposes. Moreover, as the appellant concedes that they were not legally married until September [redacted], 1997, there is no basis to deem valid a marriage between the parties prior to that date. In the absence of legal merit, the appeal must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). The Board does acknowledge the appellant's statements that the Veteran and appellant considered themselves to be husband and wife, as did the community, prior to their legal marriage; that she was apprehensive of marriage because of a prior difficult marriage; and, that they anticipated being married sooner except for the Veteran's illness. Such equitable arguments, however, do not alter the applicability of the law. While the Board is sympathetic toward the appellant, the law is dispositive in this matter, and the Board is bound in its decisions by the statutes enacted by the Congress of the United States and VA regulations issued to implement those laws. See 38 U.S.C.A. § 7104(c). See, generally, Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) (the Board must apply "the law as it exists . . . ."). 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 v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). The appellant was married to the Veteran for less than one year prior to his death, there was no children born to them, and the marriage occurred after the expiration of 15 years following the termination of the Veteran's service. Thus, the Board finds that the appellant does not meet the marriage requirements of the law to be eligible for DIC benefits. Accordingly, the appeal must be denied. ORDER The claim for entitlement to DIC benefits is denied; the appellant's marriage to the Veteran does not satisfy the one-year marriage eligibility requirement. ____________________________________________ WILLIAM YATES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs