Citation Nr: 1322263 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 04-34 213 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for purposes of VA death benefits. ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to August 1960; and his decorations included the Purple Heart Medal and Combat Infantryman Badge, among other awards. He died in December 2003. The appellant seeks recognition as the Veteran's surviving spouse. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an administrative decision issued by the RO in March 2004 that, in pertinent part, denied surviving spouse status on the basis that the appellant did not have a valid marriage to the Veteran for VA purposes. The appellant timely appealed. The appellant failed to appear for a video conference hearing that was scheduled in January 2007. Later that same month, the Board remanded the matter for additional development. The Board had instructed the RO or VA's Appeals Management Center (AMC) to send a letter to the appellant, asking her whether she believed she had a common law marriage; asking her to explain her rationale for marrying the Veteran shortly before his death; and providing another opportunity to submit evidence of their relationship prior to the ceremonial marriage. Records show that the initial letter was mistakenly addressed to the Veteran, and was returned to VA with a notation of "deceased" in April 2007. Subsequently, the appellant provided her new address in November 2009; her appeal was reactivated, and a new letter in compliance with the prior remand was mailed to the appellant by the RO in September 2011. To date, VA has not received any additional response from the appellant. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Lastly, in addition to reviewing the paper claims file, the Board has surveyed the contents of the Veteran's Virtual VA file for evidence relevant to the appellant's appeal. FINDINGS OF FACT 1. The appellant and the Veteran were in a relationship for approximately 31 years prior to being married in a ceremonial marriage on or about December [redacted], 2003. 2. The Veteran died on December [redacted], 2003, less than one year after the ceremonial marriage took place. 3. Throughout their relationship, the appellant and the Veteran resided in New York State. 4. The appellant provided no information that she was unaware that New York State did not recognize common-law marriages. 5. The appellant and the Veteran did not have children together. CONCLUSION OF LAW The criteria for recognition of the appellant as the surviving spouse of the Veteran for purposes of consideration for VA death benefits are not met. 38 U.S.C.A. §§ 101, 103, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.54, 3.102 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA should notify the claimant of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through a September 2011 letter, the RO notified the appellant of the evidence needed to establish surviving spouse status. This document served to provide notice of the information and evidence needed to substantiate the claim. VA's letter notified the appellant of what evidence she was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). There is no indication that any additional action is needed to comply with the duty to assist the appellant. To the extent that there was any deficiency with respect to the letter, the Board's remand informed her of the criteria at issue. Accordingly, based on the various notices provided, a reasonable person would be expected to understand what was required to substantiate the claim. The United States Court of Appeals for Veterans Claims (Court) has held that, when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to notify, nor the duty to assist, provisions of the VCAA are applicable. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001), & Smith v. Gober, 14 Vet. App. 227, 231-232 (2000). In this regard, there is no further assistance that would be reasonably likely to assist the appellant in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. Analysis VA death pension benefits may be paid to a surviving spouse who was married to the Veteran: (1) one year or more prior to the Veteran's death; or (2) for any period of time if a child was born of the marriage, or was born to them before the marriage; or (3) in the case of World War II Veterans, prior to January 1, 1957 (or February 1, 1965, in the case of Korean Conflict Veterans; or May 8, 1985, in the case of Vietnam era Veterans; or January 1, 2001, in the case of Persian Gulf War Veterans). 38 U.S.C.A. § 1541 (West 2002 & Supp. 2012); 38 C.F.R. § 3.54(a) (2012). VA Dependency and Indemnity Compensation (DIC) benefits are payable to a surviving spouse who was married to the Veteran: (1) within 15 years of the end of the period of service in which the injury or disease causing the Veteran's death was incurred or aggravated; or (2) one year or more; or (3) for any period of time if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C.A. § 1304 (West 2002); 38 C.F.R. § 3.54(c) (2012). Consequently, "surviving spouse" status is a threshold requirement for both DIC and death pension benefits. For a person to establish recognition as a surviving spouse of a Veteran, there must be evidence of a valid marriage to the Veteran under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The validity of a marriage is determined based upon the law of the jurisdiction where the parties resided at the time of marriage or when the rights to benefits accrued. 38 C.F.R. § 3.1(j) (2012). There are various methods in which a valid marriage may be established for VA benefit purposes. See 38 C.F.R. § 3.205 (2012). A surviving spouse for VA purposes has been defined as a person of the opposite sex whose marriage to a 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; and (1) 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 fault of the spouse; and (2) has not remarried or has not since the death of the Veteran 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. See 38 C.F.R. §§ 3.50(b), 3.53 (2012). A surviving spouse may qualify for pension, compensation, or dependency and indemnity compensation under the appropriate circumstances. See 38 C.F.R. § 3.54 (2012). In this case, the appellant contends that she is the surviving spouse of the Veteran. On her application for DIC benefits received by VA in February 2004, she contended that she and the Veteran were married in Brooklyn, New York, on December [redacted], 2003; and that they had lived together from July 1972 to December [redacted], 2003-i.e., the date of the Veteran's death. She contended that 32 years of caring that ended in marriage should be considered for purposes of recognizing her status. In essence, the appellant considered herself his wife. The Board notes that neither a marriage certificate, nor a marriage license showing authority for her marriage to the Veteran in December 2003 has been made available. Moreover, in February 2004, the appellant also contended that she was the Veteran's care provider for the past ten years, as well as his common law wife for 31 years before their marriage; and that a number of friends and family could attest to their common law marriage. However, no statements have been provided. The Veteran died on December [redacted], 2003, less than one year after the ceremonial marriage commenced. The Certificate of Death shows that the Veteran was married at the time of his death, and lists the appellant as his surviving spouse. There is no indication that the appellant ever remarried, or held herself out openly to the public as the spouse of another, following the Veteran's death. In determining whether a marriage is valid, the law of the place where the parties resided will be applied. 38 C.F.R. § 3.1(j). In this case, the appellant and the Veteran resided in the state of New York. The state of New York does not recognize common-law marriage. See N.Y. Dom. Re. § 11 (McKinney 1999). Regardless of the fact that the appellant cannot establish a valid common law marriage, VA may still deem the marriage as valid for VA purposes. The General Counsel held that lack of residence in a jurisdiction recognizing a common law marriage is not necessarily a bar to establishment of a common law marriage for the surviving spouse. VAOPGCPREC 58-91 (June 17, 1991), published at 56 Fed. Reg. 50,151 (1991). This is because under 38 C.F.R. § 3.52, the common law marriage could be "deemed valid" on the theory that the surviving spouse could have entered into the purported common law marriage without knowledge of the fact that there was an impediment to the marriage. Colon v. Brown, 9 Vet. App. 104 (1996). For VA purposes, an otherwise invalid marriage may be "deemed valid" if certain conditions are met. 38 C.F.R. § 3.52. These conditions are: (a) the marriage occurred 1 year or more before the Veteran died (or at any time if a child was born to them before or during the marriage); (b) the claimant must have entered into the marriage with no knowledge of the legal impediment, (c) the claimant must have cohabited with the Veteran continuously from the date of marriage to the date of his death, and (d) no claim has been filed by a legal surviving spouse who has been found entitled to benefits. In this case, there is an obvious legal impediment to a common law marriage of the appellant and the Veteran, because the state of New York did not recognize common law marriages at the time when the appellant and the Veteran lived together from 1972 until his death in 2003. Indeed, VA specifically provided the appellant with an opportunity to explain whether she was aware or unaware of the impediment; whether she believed that she had a valid common law marriage to the Veteran; and also provided her an opportunity to explain the rationale for her ceremonial marriage to the Veteran shortly before his death. However, the appellant has not asserted that she was unaware of an impediment. Moreover, it is noted that in a claim received by VA in October 1995, the Veteran reported that he was married to another woman. While the appellant reports that she and the Veteran lived together continuously for many years prior to his death, there is no evidence of record suggesting that the appellant was unaware of the legal impediment to a common law marriage to the Veteran. Under these circumstances, the Board has no choice but to find that the requirements of 38 C.F.R. § 3.52 for a "deemed valid" marriage are not satisfied. Nor is there any claim filed by a legal surviving spouse who has been found entitled to gratuitous death benefits. Moreover, the appellant and the Veteran had no children together. Hence, entitlement to recognition of the appellant as the surviving spouse of the Veteran for purposes of consideration for VA death benefits is not warranted. Where, as here, the law and not the evidence is dispositive, the appeal must be denied for failure to state a claim upon which relief may be granted. Sabonis v. Brown, 6 Vet. App. 426 (1994). The benefit of the doubt doctrine is inapplicable because the issue involves the appellant's status as a claimant. See, e.g., Rogers v. Derwinski, 2 Vet. App. 419, 422 (1992). (CONTINUED ON NEXT PAGE) ORDER Entitlement to recognition of the appellant as the surviving spouse of the Veteran for purposes of establishing eligibility for VA death benefits is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs