Citation Nr: 1007265 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 05-19 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to recognition as the surviving spouse of the Veteran for the purpose of receiving Dependency and Indemnity Compensation (DIC) benefits. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD L. Barstow, Associate Counsel INTRODUCTION The Veteran had active military service from August 1969 to August 1972. The Veteran died in March 1999. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, by which the RO denied the appellant service connection for the cause of the Veteran's death. The RO readjudicated the case in a November 2006 Supplemental Statement of the Case (SSOC) and denied the claim, in part, because she did not qualify as a surviving spouse under the pertinent VA regulations. Since the appellant filed a claim for DIC benefits, although the RO initially adjudicated the issue as service connection for the cause of the Veteran's death, but then denied the claim, in part, because the appellant did not qualify as a surviving spouse, the Board has reframed the issue as set forth on the title page. The Board notes that the appellant requested and was scheduled for a Travel Board hearing before a Veterans Law Judge, but did not appear for the hearing. Accordingly, the Board considers the appellant's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d), (e) (2009). The case was remanded by the Board in November 2008 for additional development. Such development having been accomplished, the Board will proceed with an adjudication of the appellant's claim. FINDINGS OF FACT 1. The Veteran died in March 1999. 2. At the time of his death, the Veteran and the appellant were not legally married for 1 year or more, and no child was born to them before or during the marriage. 3. Common law marriage is not recognized as valid in the Commonwealth of Massachusetts. 4. The Veteran and the appellant were legally married in March 1999, but cohabitated for at least 20 years prior to the date of marriage. 5. The record does not show that the appellant entered into the purported common law marriage without knowledge of a legal impediment to such marriage. CONCLUSION OF LAW The requirements for recognition as the Veteran's surviving spouse for purposes of establishing entitlement to DIC benefits have not been met. 38 U.S.C.A. §§ 101(3), 103, 1102, 1304, 1541, 5124 (West 2002); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53, 3.54, 3.204, 3.205 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the appellant and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the appellant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the appellant is expected to provide. The Court held that in the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, section 5103(a) notice must include (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. See Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Prior to initial adjudication of the appellant's claim, a letter dated in July 2004 fully satisfied the duty to notify provisions for the first three elements. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio, at 187. The appellant was aware that it was ultimately her responsibility to give VA any evidence pertaining to the claim. The July 2004 letter did not specifically discuss the conditions for which the Veteran was service-connected nor did it address service connection for the cause of the Veteran's death based on conditions for which he had not received service connection during his life. The Board notes that the appellant was not provided correct notice in accordance with Hupp. However, as discussed below, since the appellant's claim is denied since she is not a surviving spouse, any error regarding the Hupp notice elements is harmless. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Since the appellant's claim will be denied, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Pursuant to the Board's November 2008 remand, the appellant was informed in correspondence dated in February 2009 of what evidence was required to establish the existence of a "deemed valid" common law marriage, and to submit evidence corroborating having a common law marriage. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time referenced outstanding records that she wanted VA to obtain or that she felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. However, since the claim is being denied due to the appellant not being the surviving spouse of the Veteran, no medical opinion is needed. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. The Merits of the Claim The appellant contends that she should be considered a surviving spouse of the Veteran for VA DIC benefits. She also contends that the cause of the Veteran's death should be service connected. As an initial matter, the Board notes that unless the appellant qualifies as a surviving spouse, she is not entitled to VA DIC benefits. Therefore the issue of service connection for the cause of the Veteran's death is rendered moot if the appellant does not qualify as a surviving spouse. Accordingly, as discussed in detail below, since the Board concludes that the appellant is not the surviving spouse, the issue of service connection for the Veteran's death will not be addressed. The term "surviving spouse" means a person of the opposite sex (1) whose marriage to the veteran was valid under the law of the place of residence at the time of the marriage or when the right to benefits accrued; (2) who was the spouse of a veteran at the time of the veteran's death; (3) who lived with the veteran continuously from the date of marriage to the date of the veteran's death; (4) and who, except as provided in 38 C.F.R. § 3.55, has not remarried or has not since the death of the veteran (and after September 19, 1962) lived with another person of the opposite sex and held herself out openly to the public to be the spouse of such other person. See 38 U.S.C.A. §§ 101(3); 3.50(b). A surviving spouse may qualify for DIC benefits if the marriage to the veteran occurred before or during his or her service. Compensation and DIC benefits will also be paid to a surviving spouse (1) who was married to the veteran for one year or more, (2) who had a child born of the marriage, or born to them before the marriage, or (3) in the case of compensation and DIC benefits, who was 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. See 38 C.F.R. § 3.54; see also 38 U.S.C.A. §§ 1102, 1304, 1541. The basic facts of this case are not in dispute. The appellant here is the Veteran's spouse. The two were married in March 1999, in the Commonwealth of Massachusetts. The Veteran died four days later; the immediate cause of death was metastatic cholangiocarcinoma. She did not have a child by the Veteran and the marriage was entered into more than 25 years after the termination of the Veteran's last period of service and, consequently, she was not 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. Thus, the appellant does not meet the requirements under 38 C.F.R. § 3.54. The appellant's representative contends that the appellant was in a common law marriage with the Veteran for the 20 years prior to their ceremonial marriage and is entitled to DIC benefits. In support of the contention that the appellant is a surviving spouse, lay statements from friends, neighbors, and family all attest to the fact that the appellant and the Veteran cohabitated continuously for more than 20 years prior to the marriage. The provisions of 38 C.F.R. § 2.305(a)(6) allow benefits for those in common law marriages, but only in states that recognize common law marriages as valid. In Massachusetts, where the appellant has lived with the Veteran, there is no such recognition for common law marriages. See VA Adjudication Manual, M-21-1MR, Part III, Subpart iii, Chapter 5, Section C. Massachusetts courts have long held that "common-law marriage is not recognized in Massachusetts." Sutton v. Valois, 846 N.E. 2d 1171, 1175 (Mass. App. Ct. 2006) (citing Collins v. Guggenheim, 631 N.E. 2d 1016, 1017 (Mass. 1994)). Importantly, cohabitation "does not create the relationship of husband and wife in the absence of a formal solemnization of marriage and the incidents of the marital relationship do not attach to an arrangement of cohabitation." Sutton, 846 N.E.2d at 1175 (citing Collins, 631 N.E.2d at 1017). However, where an attempted marriage (common law) is invalid by reason of legal impediment, VA regulations allow for certain attempted marriages to be nevertheless "deemed valid" if specific legal requirements are met. See 38 U.S.C.A. § 103(a) and 38 C.F.R. §§ 3.52, 3.205(c), as interpreted by VAOPGCPREC 58-91, 56 Fed. Reg. 50, 151 (1991). In its opinion, the VA General Counsel held that 38 U.S.C.A. § 103(a), in part, provides that where it is established that a claimant for gratuitous veterans' death benefits entered into a marriage with a veteran without knowledge of the existence of a legal impediment to that marriage, and thereafter cohabited with the veteran for one year or more immediately preceding the veteran's death, such marriage will be deemed to be valid. The requirement of a marriage ceremony by a jurisdiction that does not recognize common law marriage constitutes a "legal impediment" to such a marriage for purposes of that section. VAOPGCPREC 58-91. In Colon v. Brown, 9 Vet. App. 104 (1996), the Court determined that in cases where there is an impediment to entering into a common law marriage, such as if the appellant was unaware of the impediment, then an otherwise invalid common law marriage could be deemed valid. Colon v. Brown issued directives in cases such as the appellant's, where the appellant must be given the opportunity to submit a signed statement pursuant to 38 C.F.R. § 3.205(c), indicating that she had no knowledge of a legal impediment to the marriage. Here, although the case was remanded to afford the appellant the opportunity to submit a signed statement pursuant to 38 C.F.R. § 3.205(c), indicating that she had no knowledge of a legal impediment to a common law marriage, no such statement has been received. In this regard, the Board notes that the record indicates different addresses for the appellant. A January 2009 letter from the post office in Brockton, Massachusetts indicates a correct address for the appellant; it was this address that the RO sent a duty to assist letter to the appellant asking for a statement that she had no knowledge of a legal impediment to the common law marriage. An informal hearing presentation from the appellant's representative in January 2010 indicates that the appellant's contact information could not be ascertained. Additionally, the appellant was requested to submit supporting evidence showing proof of a common law marriage. Although the appellant submitted lay statements indicating that she and the Veteran cohabitated continuously for more than 20 years, the statements do not reveal that the parties held themselves out as husband and wife, or whether they were generally accepted as such in the communities in which they lived. 38 C.F.R. § 3.205(a). One of the lay statements indicated that the Veteran introduced the appellant as his girlfriend, and not his wife. In this case, the evidence of record does not show that the appellant and Veteran had a common law marriage; even if they did have a common law marriage, no evidence has been submitted to indicate that the appellant was unaware of a legal impediment to marriage. Accordingly, it cannot be found that the Veteran and the appellant had an otherwise invalid common law marriage that may be deemed valid. Because the appellant and the Veteran did not have an invalid marriage that may be deemed valid, and the appellant and the Veteran were not married for more than one year prior to his death, the appellant may not be considered to be the Veteran's surviving spouse. Significantly, the Board is without authority to grant benefits simply because it might perceive the result to be equitable. 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). The criteria for entitlement to recognition as the Veteran's surviving spouse for the purpose of establishing entitlement to DIC benefits have not been met. The appellant's claim for benefits therefore must be denied. The evidence is not equipoise as to warrant the application of the benefit of the doubt doctrine. See 38 C.F.R. §3.102 (2009). Accordingly, the Board concludes that the preponderance of the evidence is against the appellant's claim for entitlement to recognition as the surviving spouse of the Veteran for the purpose of receiving DIC benefits and must be denied. ORDER Entitlement to recognition as the surviving spouse of the Veteran for the purpose of receiving DIC benefits is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs