Citation Nr: 1122006 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 10-07 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether the appellant qualifies as a surviving spouse for the purpose of basic eligibility to Dependency and Indemnity Compensation (DIC), death pension, and accrued benefits. ATTORNEY FOR THE BOARD Nicole Klassen, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to August 1968. The Veteran died in October 2007. The appellant claims to be his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to DIC, death pension, and accrued benefits. FINDINGS OF FACT 1. The appellant and the Veteran married in February 1966 and legally divorced in March 2002. 2. Following their March 2002 divorce, the appellant and the Veteran did not subsequently remarry each other or form what could reasonably be considered a common-law marriage. CONCLUSION OF LAW The requirements for recognition as the Veteran's surviving spouse for the purpose of establishing eligibility for VA benefits have not been met. 38 U.S.C.A. §§ 101, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1(j), 3.50, 3.52 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Entitlement to Basic Eligibility to DIC, Death Pension, and Accrued Benefits as the Veteran's Surviving Spouse The appellant contends that she is the surviving spouse of the Veteran, and as such, that she is entitled to death benefits, including DIC, death pension benefits, and accrued benefits. In support of this contention, the appellant asserts that, although she and the Veteran were divorced and no longer living together at the time of his death in 2007, she is entitled to death benefits because she was married to the Veteran for 36 years during his lifetime, including while he was in service; had three children with him; assisted him with his application for VA benefits during his lifetime; and never re-married following their divorce. See July 2009 notice of disagreement, June 2009 statement in support of claim, and February 2010 substantive appeal. In this regard, the appellant essentially contends that it is unfair for her not to be considered the surviving spouse of the Veteran now just because she and the Veteran divorced prior to his death. See July 2009 notice of disagreement. In order to be entitled to VA benefits as a "surviving spouse" of a Veteran, the appellant must be a person (1) of the opposite sex, (2) whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1(j), (3) who was the spouse of the Veteran at the time of the Veteran's death; (4) 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 that was due to the misconduct of, or procured by, the Veteran without the fault of the spouse; and (5) has not remarried since the death of the Veteran or 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 U.S.C.A. § 101(3); 38 C.F.R. §§ 3.50(b), 3.53. For VA purposes, "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). Further, the Board notes that, for VA purposes, an otherwise invalid marriage may be "deemed valid" where (1) the marriage occurred one year or more before the Veteran died (or at any time if a child was born to them before or during the marriage); (2) the claimant entered into the marriage with no knowledge of legal impediment, (3) the claimant cohabited with the Veteran continuously from the date of the purported marriage to the date of his death, and (4) no claim has been filed by a legal surviving spouse who has been found to be entitled to benefits. 38 C.F.R. § 3.52. The essential facts of this case are not in dispute. The appellant and the Veteran were married in the state of Georgia in February 1966, and subsequently had three children together. See February 1966 marriage certificate and birth certificates dated in January 1969, February 1972, and January 1976. Thirty-six years later, in March 2002, an uncontested Final Judgment of Dissolution of Marriage with Property but No Dependent or Minor Children was entered in a Florida Circuit Court, which listed the appellant as the petitioner and the Veteran as the respondent. See March 2002 divorce decree. This decree also indicates that, subsequent to the divorce, the appellant's former name was to be restored. The record also reflects that, following their March 2002 divorce, neither the Veteran nor the appellant continued to hold themselves out as married. Rather, during VA psychiatric treatment in December 2002, the Veteran reported that he was currently divorced and living with his father and brother. Similarly, during further VA psychiatric treatment in June 2003, when discussing his immediate family and/or significant other, he only listed his sons, daughter, and four grandchildren, with no mention of a wife or significant other. To the contrary, at that time, the Veteran reported that he had only been married once in his life, and that his wife of 36 years had divorced him approximately 18 months earlier because he was no longer making her happy. In this regard, the Veteran reported that he "lost everything" in the divorce, including the house, and as such, indicated that he was currently living with one of his sons. Moreover, on a subsequent claim for VA benefits dated in July 2003, the Veteran indicated that his current marital status was "divorced." In this regard, the Board acknowledges that the Veteran's October 2007 death certificate lists the Veteran's marital status as "widowed." Significantly, however, insofar as this notation contradicts the other evidence of record, and because the "widowed" line on the death certificate is directly next to the "divorced" line, this appears to have been a clerical error. The Board also acknowledges that, on her initial claim for VA death benefits, the appellant indicated that her relationship to the Veteran was as his spouse; that their marriage had ended with the death of the Veteran; and that she had lived continuously with the Veteran from the date of marriage to the date of his death. Significantly, however, the evidence of record contradicts these contentions. In this regard, the Board highlights that, in subsequent statements, the appellant clarified that she only lived with the Veteran until January 2002, when she moved out of the house, and filed for divorce; that she and the Veteran divorced two months later, in March 2002; and that, following the divorce and the sale of their previously shared home in Tallahassee, Florida, the Veteran moved in with one of their sons in Lloyd, Florida, where he lived until he passed away in October 2007. See July 2009 notice of disagreement, June 2009 statement in support of claim, and February 2010 substantive appeal. Based on the foregoing, the Board finds no legal or factual grounds by which the appellant may be found to be the "surviving spouse" of the Veteran for VA purposes. 38 C.F.R. §§ 3.1(j), 3.50(b). Rather, the evidence of record reflects that the Veteran and the appellant were legally divorced in March 2002 and did not subsequently remarry. In this regard, the Board notes that the appellant has not challenged the validity of the divorce decree and there is no indication from the evidence of record that the divorce was secured through fraud or collusion. Rather, according to the appellant's own reports and the other evidence of record, after moving out of her marital home with the Veteran in January 2002, she filed for divorce. See March 2002 divorce decree, appellant's June 2009 statement, and Veteran's June 2003 VA treatment record. Further, the Board has considered whether, following their March 2002 divorce, the Veteran and appellant entered into an attempted marriage that was invalid by reason of legal impediment, but which may nevertheless be deemed valid for VA purposes. In this regard, the Board notes that common law marriage is not recognized in the state of Florida, where it appears that the appellant and the Veteran resided prior to his death. FLA. STAT. § 741.211 (2010). Regardless of this fact, however, the Board notes that residence in a jurisdiction that does not recognize common-law marriage is not necessarily a bar to establishment of a common-law marriage for a surviving spouse. VAOPGCPREC 58-91 (June 17, 1991), published at 56 Fed. Reg. 50,151 (1991). Rather, as noted above, an otherwise invalid marriage may be "deemed valid" in certain circumstances under the theory that the surviving spouse entered the purported marriage without knowledge of the fact that there was an impediment to the marriage (i.e., the jurisdiction's non-recognition of a common-law marriage). Colon v. Brown, 9 Vet. App. 104 (1996). In this case, however, there is simply no evidence of record to support a finding that the Veteran and the appellant entered into an attempted marriage following their March 2002 divorce. Rather, as noted above, the appellant and the Veteran terminated their cohabitation two months prior to their divorce, and at no point after their divorce, did the appellant and the Veteran hold themselves out as married. In this regard, the Board highlights that, during VA treatment in December 2002 and June 2003, the Veteran referred to himself as "divorced," and on his July 2003 claim for VA benefits, the Veteran indicated that his current marital status was "divorced." Further, the divorce decree indicates that the appellant's maiden name was to be reinstated following the divorce. As such, the record fails to show that a common-law marriage was ever entered into following their March 2002 divorce, and accordingly, the Board cannot find that the appellant was the Veteran's spouse at the time of his death. The Board acknowledges that, to some extent, the appellant appears to be raising an argument for entitlement that is couched in equity. In this regard, she essentially contends that, because she was married to the Veteran for 36 years during his lifetime, including while he was in service; had three children with him; assisted him with his application for VA benefits; and never remarried following their divorce, fairness dictates that she receive benefits as a surviving spouse. In this regard, to Board notes that it is sympathetic to the appellant's position; however, the Board is nonetheless bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Rather, the Board must decide this case based on the application of the law to the pertinent facts, and cannot extend benefits out of sympathy for a particular claimant. See Owings v. Brown, 8 Vet. App. 17 (1995) (citing Kelly v. Derwinski, 3 Vet. App. 171 (1992)). Accordingly, the Board concludes that the appellant does not meet the basic eligibility requirements for entitlement to VA benefits as the Veteran's surviving spouse. Because the evidence shows that the appellant was not married to the Veteran pursuant to a legally valid marriage or a marriage deemed valid for VA purposes at the time of the Veteran's death in October 2007, entitlement to DIC, death pension, and/or accrued benefits as the Veteran's surviving spouse must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 429- 30 (1994). II. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Significantly, however, in this case, the application of the law to the facts is dispositive. Thus, the appeal must be terminated because there is no entitlement under the law to the benefit sought. See Sabonis v. Brown, 6 Vet. App. 426, 429- 30 (1994). As such, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002); 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). ORDER The appellant does not qualify as a surviving spouse for the purpose of basic eligibility to DIC, death pension, and accrued benefits, and as such, her claim for such benefits is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs