Citation Nr: 1313614 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 09-11 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to Department of Veterans Affairs (VA) Dependency and Indemnity Compensation (DIC) benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran had active service from April 1967 to February 1973. The Veteran died in September 2007. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 administrative determination of the Portland, Oregon, Regional Office (RO). The November 2007 administrative determination concluded that the appellant did not meet the requirements to receive VA DIC benefits and she appealed this determination. The appellant requested a Board hearing in connection this appeal and such hearing was scheduled. The hearing request is deemed withdrawn because she failed to report for this hearing and no request for postponement has been received. See 38 C.F.R. §§ 20.703, 20.704 (2012). FINDING OF FACT The appellant and the Veteran did not have any children together, were not married 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, and were not married one year or more. CONCLUSION OF LAW The criteria for entitlement to VA DIC benefits have not been met. 38 U.S.C.A. §§ 101, 103, 1102, 1304, 1318; 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.22; 3.50, 3.52, 3.53, 3.54, 3.102, 3.205 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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). These requirements are not applicable because the application of the law to the undisputed facts is dispositive of the appeal. See Mason v. Principi, 16 Vet. App. 129 (2002). VA DIC benefits may be payable to a Veteran's surviving spouse who died on or after January 1, 1957, if the surviving spouse was married to the Veteran (A) within 15 years after the period of service in which the injury or disease causing the Veteran's death was incurred or aggravated; (B) for one year or more; or (C) for any period of time if a child was born to the parties. See 38 U.S.C.A. § 1304; 38 C.F.R. § 3.54(b). Marriages other than by ceremony are also recognized by VA, if 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 U.S.C.A. § 103(a); 38 C.F.R. §§ 3.1(j); 3.205(a)(6). The evidence of record does not suggest, nor does she assert, the Veteran and the appellant had a child together or were married within 15 years of his separation from service. The submitted marriage certificate indicates the appellant and the Veteran were statutorily married in February 2007 and the Veteran died in September 2007. The appellant and the Veteran were not statutorily married for one year or more. Prior to 2002 the Veteran and the appellant resided in the State of Montana. His divorce from his prior spouse was not final, precluding the parties from entering into a valid common law marriage in this state. See Matter of Est. of Alcorn, 868 P.2d 629 (Mont. 1994); see also Appellant's Statement, Jul. 15, 2008. The appellant and the Veteran resided in the State of Oregon from 2002 until his death. This state does not permit parties to enter into a common law marriage. See Huard v. McTeigh, 232 P. 658, 661-62 (Or. 1925). The appellant's many statements convey her actual knowledge of the impediment to the Veteran entering into a valid marriage (i.e., his prior valid marriage had not been finally terminated) and VA may not deem the parties to have been married prior to his final divorce. 38 C.F.R. § 3.52. The appellant and the Veteran did not enter into a common law marriage, nor may they be deemed to have been married, for one year or more. At the time of the Veteran's September 2007 death, a 100 percent disability evaluation was in effect for lung cancer and brain cancer, effective October 18, 2006, meaning he was not continually rated totally disabled (A) for least 10 years prior to his death or (B) since his release from active duty and five years prior to his death, and (C) there is no evidence he was a prisoner of war. 38 C.F.R. § 3.22(a). Moreover, the appellant and the Veteran were not married for at least one year immediately preceding the date of the Veteran's death nor do the parties have a child together. See 38 C.F.R. § 3.22(d). While she is the Veteran's surviving spouse, the appellant does not meet the requirements to establish entitlement to VA DIC benefits. See 38 U.S.C.A. §§ 1304, 1318; 38 C.F.R. §§ 3.22(d); 3.54(b). The preponderance of the evidence is against the claim for entitlement to VA DIC benefits; there is no doubt to be resolved, and entitlement to VA DIC benefits is not warranted. ORDER Entitlement VA DIC benefits is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs