Citation Nr: 1012001	
Decision Date: 03/31/10    Archive Date: 04/07/10

DOCKET NO.  08-34 959	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, 
Michigan


THE ISSUE

Whether the appellant is the Veteran's surviving spouse for 
Department of Veterans Affairs (VA) benefit purposes.


ATTORNEY FOR THE BOARD

Joseph R. Keselyak, Counsel




INTRODUCTION

The Veteran served on active duty from January 1953 to April 
1956.  He died in May 1993.

This matter comes to the Board of Veterans' Appeals (Board) 
from a September 2007 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Detroit, 
Michigan.

It is noted that following certification of the present 
appeal to the Board that the appellant's representative, The 
American Legion, submitted a request to withdraw in this 
capacity as its Code of Procedure prevented its participation 
in a contested claim, such as this.  This request was granted 
in January 2010 on the grounds that good cause had been shown 
for the withdrawal of representation following certification 
of the appeal to the Board.  See 38 C.F.R. § 20.608(c).


FINDINGS OF FACT

The claimant did not cohabitate with the Veteran from the 
time of their purported marriage to his date of death and 
another claimant (A.L.J.) had been found to be entitled to 
gratuitous VA death benefits.


CONCLUSION OF LAW

The criteria for entitlement to recognition as the surviving 
spouse of the Veteran for purposes of VA benefits have not 
been met.  38 U.S.C.A. §§ 101(3), 103, 102, 1304, 1541 (West 
2002 & Supp. 2009); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53, 
3.54, 3.55, 3.205 (2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As provided for by the Veterans Claims Assistance Act (VCAA), 
VA has a duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 
C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).

In this case, VCAA notice is not required because the 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).

A "spouse" is a person of the opposite sex whose 
"marriage" to the veteran meets the requirements of 38 
C.F.R. § 3.1(j).  38 C.F.R. § 3.50(a).  "Marriage" means a 
marriage valid under the law of the place where the parties 
resided at the time of the marriage, or the law of the place 
where the parties resided when the right to benefits accrued.  
38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j).

To be recognized as the Veteran's surviving spouse for the 
purpose of establishing entitlement to VA benefits, the 
appellant must be a person of the opposite sex who was the 
spouse of a veteran at the time of the veteran's death, and 
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 the fault of the spouse) and 
has not remarried.  38 U.S.C.A. § 101(3); 38 C.F.R. § 
3.50(b)(1).

The requirement that there must be continuous cohabitation 
from the date of marriage to the date of death of the veteran 
will be considered as having been met when the evidence shows 
that any separation was due to the misconduct of, or procured 
by, the veteran without the fault of the surviving spouse.  
Temporary separations which ordinarily occur, including those 
caused for the time being through fault of either party, will 
not break the continuity of the cohabitation.  38 C.F.R. § 
3.53(a) see also Alpough v. Nicholson, 490 F.3d 1352 (Fed. 
Cir. 2007). 


Where an attempted marriage 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.  Basically, such an attempted 
marriage will be "deemed valid" if: (a) the attempted 
marriage occurred one year or more before the veteran died, 
unless there was a child born prior to or during the 
marriage, in which case the marriage may have existed for any 
period of time prior to the Veteran's death; and (b) the 
claimant entered into the marriage without knowledge of the 
impediment; and (c) the claimant cohabited with the veteran 
continuously from the date of the attempted marriage until 
his death; and (d) no other claimant has been found to be 
entitled to gratuitous VA death benefits.  38 U.S.C.A. § 103; 
38 C.F.R. § 3.52.  If the provisions of 38 C.F.R. § 3.205(a) 
are satisfied as well as those of 38 C.F.R. § 3.52, the 
claimant's signed statement that she had no knowledge of an 
impediment to a marriage to the veteran will be accepted as 
proof of the fact, in the absence of information to the 
contrary.  38 U.S.C.A. § 501; 38 C.F.R. § 3.205(c).  

The United States Court of Appeals for Veterans Claims 
(Court) has issued pertinent directives in Colon v. Brown, 9 
Vet. App 104 (1996).  Specifically, in cases such as the 
appellant's, the appellant must be given an 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.  In general, the Court indicated that if the 
appellant was unaware of the impediment, then an otherwise 
invalid marriage could be deemed valid.  In this regard, the 
Board notes that on numerous occasions the appellant has 
averred that she had no prior knowledge of the Veteran having 
been married.  See e.g. statements received in April 1994 and 
November 2007.

Briefly, the Board notes that the late Veteran had a fairly 
complicated marital history.  A review of the record shows 
that the Veteran once alleged that he was "living common 
law," upon his entrance into service.  See January 1960 
statement from Veteran.  The Veteran then apparently obtained 
a marriage certificate and solemnized a marriage with A.L.J. 
in June 1958 in Toledo, Ohio.  Later, the Veteran obtained a 
marriage license in December 1968 and solemnized the marriage 
to the appellant that same month this time in Detroit, 
Michigan.  It is duly noted that on the marriage license it 
is documented that the Veteran denied having ever been 
married at this time.  Yet again, the Veteran obtained 
another marriage license, also in Michigan, and solemnized a 
marriage to M.L.C. in December 1976; he likewise denied 
having been previously married at this time.  This was the 
last of the Veteran's "marriages."

A review of the record discloses that the Veteran had one 
child to A.L.J., but none to the appellant.  The appellant 
has specifically denied having ever had children with the 
Veteran.  See VA Form 21-534 dated in November 1993.  She 
also has related that she and the Veteran separated for 
"personal indifferences" and that she did not live 
continuously with the Veteran until the date of his death.  
Id.  

A.L.J., M.L.C. and the appellant all made a claim for 
gratuitous VA death benefits shortly after the Veteran's 
death.  Ultimately, A.L.J. was awarded these benefits.  
A.L.J. apparently died sometime in April 2007.  The appellant 
now claims renewed entitlement to gratuitous VA death 
benefits.



As noted above, the pertinent facts are not in dispute.  The 
claim is denied for two salient reasons.  Firstly, the 
appellant did not cohabitate with the Veteran continuously 
from the date of their attempted marriage in December 1968 
until his death in May 1993.  In this regard, the Board notes 
that their separation was for "personal indifferences" and 
finds that any separation was not due to the misconduct of, 
or procured by, the Veteran.  See 38 C.F.R. §§ 
3.52(c) 3.53(a).  Secondly, and more importantly, A.L.J., not 
the appellant, was found to be entitled to gratuitous VA 
death benefits after she filed a claim.  38 C.F.R. § 3.52(d).  
For these reasons, the marriage to the appellant is not 
deemed valid and she is not entitled to recognition as the 
Veteran's spouse for VA benefits purposes.  

The Board acknowledges that the appellant was very likely 
unaware of the Veteran's prior solemnized marriage.  However, 
the criteria are conjunctive and if any one condition is not 
met, the marriage shall not be deemed valid.  Accordingly, 
regardless of the appellant's lack of knowledge of the 
impediment to her marriage to the Veteran, the claim must be 
denied for the foregoing reasons.


ORDER

Entitlement to recognition of the appellant as the Veteran's 
surviving spouse for VA benefits purposes is denied.



____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs