Citation Nr: 1318084 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 11-25 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES Entitlement to recognition of the appellant as the deceased Veteran's surviving spouse for purposes of receiving dependency and indemnity compensation (DIC). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant and [redacted] ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from March 1970 to February 1973. He died in June 1995. The appellant alleges that she is his surviving spouse. This appeal to the Board of Veterans' Appeals (Board) arises from a June 2011 decision of the Louisville, Kentucky Regional Office (RO) of the Department of Veterans' Affairs (VA). In June 2012, a Board videoconference hearing was held before the undersigned Acting Veteran's Law Judge; a transcript of the hearing is of record. In response to an earlier July 1995 rating decision denying an increased rating for the Veteran's PTSD, the appellant submitted a September 1995 statement, where she appeared to disagree with the July 1995 decision. As the Veteran had already passed away by the time of the July 1995 decision, this statement could potentially have been considered as a claim for accrued benefits. However, in light of the Board's finding that the appellant may not be considered the surviving spouse, and thus, is not a proper claimant for accrued benefits, no action need to be taken by the RO in relation to this statement. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The appellant and the Veteran were married in October 1972 in Tennessee. 2. The appellant and the Veteran divorced in September 1981 in Kentucky. 3. The appellant and the Veteran continued to live together in Kentucky following the divorce. 4. The Veteran died in June 1995. 5. Neither Kentucky nor Tennessee recognizes common law marriage. 6. The appellant was not married to the Veteran at the time of his death. CONCLUSION OF LAW The criteria to establish the appellant as the Veteran's surviving spouse for purposes of receiving dependency and indemnity compensation are not met. 38 U.S.C.A. §§ 1541 (West 2002); 38 C.F.R. § 3.3, 3.50, 3.53 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran 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 claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). The instant claim turns on a matter of law (i.e. whether the appellant can be considered the Veteran's surviving spouse for VA benefits purposes) and not on the underlying facts or development of the facts. The VCAA can have no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on fact. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board therefore finds that any deficiency in VA's VCAA notice or development action is harmless error. II. Analysis In order to succeed in establishing status as a claimant for the purposes of entitlement to VA dependency and indemnity compensation, the evidence must show that the appellant was validly married to the Veteran under the laws of the appropriate jurisdiction. The appellant must also meet the criteria of surviving spouse. See 38 U.S.C.A. § 1541; 38 C.F.R. §§ 3.1(j), 3.50(a), (b); Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The Board notes that for VA benefit purposes, a "spouse" is a person of the opposite sex who is a husband or wife. 38 U.S.C.A. § 101(31). 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 rights to benefits accrued." 38 C.F.R. § 3.1(j). The term "surviving spouse," except as provided in 38 C.F.R. § 3.52, means 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 the Veteran at the time of the Veteran's death. 38 C.F.R. § 3.50(b). A surviving spouse must 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 that was due to the misconduct of, or procured by, the Veteran without the fault of the spouse. 38 C.F.R. § 3.50(b)(1). A surviving spouse must not have remarried or, 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 openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50(b)(2). 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). The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason which did not show an intent on the part of the surviving spouse to desert the Veteran, the continuity of the cohabitation will not be considered as having been broken. 38 C.F.R. § 3.53(b). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The evidence clearly shows that the Veteran and the appellant were married in October 1972 in Pickett County, Tennessee. They subsequently lived together for a number of years in Kentucky. In September 1981, after almost nine years of marriage, they were divorced in Wayne County, Kentucky. The record contains a copy of the September 1981 divorce decree (i.e. decree of dissolution of the marriage). There is no indication or allegation that this decree is not valid. The appellant has credibly testified that she entered into the divorce because the Veteran had been physically abusive and because she had hoped it would help her get aid to families with dependent children (AFDC) benefits and food stamps for her children. She has also credibly testified that she, the Veteran, and their children continued to live together after the divorce up until the time of the Veteran's death. Thus, she and the Veteran are reasonably shown to have continuously cohabitated from the date of the marriage to the time of the Veteran's death. Unfortunately, the appellant and the Veteran formally divorced in September 1981 in Kentucky. Although they lived together in Kentucky for the majority of the time until the Veteran's death in June 1995, they did not formally remarry. The couple lived in the same manner as would a "common law" man and wife. Unfortunately, the state of Kentucky does not recognize "common law marriage." See Gilbert v. Gilbert, 275 Ky. 559(1938) (indicating that Kentucky does not recognize common law marriages except in relation to certain workmen's compensation cases, situations which are not relevant to the appellant's claim). (Notably, Tennessee, where the Veteran and the appellant were married, also does not recognize common law marriages. See e.g. Troxel v. Jones, 45 Tenn. App. 264 (1958)). Consequently, because the appellant did not formally remarry the Veteran after their divorce in September 1981 and because Kentucky does not recognize common law marriage, the appellant was not the "spouse of the Veteran" at the time he died under the controlling regulations. 38 C.F.R. §§ 3.1(j), 3.50. Accordingly, she may not be considered his surviving spouse for purposes of receipt of dependency and indemnity compensation. 38 C.F.R. §§ 3.1(j), 3.50. The Board has also considered whether the provisions of 38 C.F.R. § 3.52, pertaining to "deemed valid marriages" might be applicable to the appellant's case. However, these provisions pertain to a claimant/appellant who actually attempted to formally marry or remarry but was not able to do so do to a legal impediment. In the instant case, the appellant clearly divorced the Veteran and did not attempt to formally remarry. Consequently, 38 C.F.R. § 3.52 is not applicable to her claim. The Board emphasizes that the evidence shows that in divorcing the Veteran in September 1982, the appellant acted in the best interests of her family. It also shows that despite the hardships she faced, she remained committed to the Veteran after the divorce and continued to live with him. Unfortunately, because the couple continued to cohabitate without formally remarrying in Kentucky, a state that does not recognize common law marriage, VA regulations do not permit her to be recognized as the surviving spouse of the Veteran for purposes of receiving dependency and indemnity compensation. The Board is 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). "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 (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). The disposition of this claim is based on the law, and not the facts of the case. Accordingly, it must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to recognition of the appellant as the deceased veteran's surviving spouse for purposes of receiving dependency and indemnity compensation (DIC) is denied. ______________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs