Citation Nr: 1326591 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 09-37 288A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to recognition as an eligible surviving spouse for the purpose of qualifying to receive dependency and indemnity compensation (DIC) and death pension benefits. ATTORNEY FOR THE BOARD K. Gielow, Counsel (CONTINUED ON THE NEXT PAGE) INTRODUCTION The Veteran served on active duty from March 1966 to April 1972 and was awarded the Purple Heart Medal. He died in February 2009, and the appellant seeks entitlement to Department of Veterans Affairs (VA) dependency and indemnity compensation (DIC) and death pension benefits as a surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the VA Regional Office (RO) in Roanoke, Virginia. FINDINGS OF FACT 1. The Veteran and the appellant were married in April 2008. 2. The Veteran died in February 2009. 3. At the time of the Veteran's death, the appellant and the Veteran had been married for a period of less than one year; no children were born to the couple during the marriage or prior to the marriage; and the appellant was not married to the Veteran before or during his period of military service, nor was she married to him anytime during the 15 years following his separation from service. CONCLUSION OF LAW There is no legal basis to recognize the appellant as an eligible surviving spouse for the purpose of receiving DIC benefits. 38 U.S.C.A. §§ 101(3), 103, 1304 (West 2002); 38 C.F.R. §§ 3.1(j), 3.5, 3.50, 3.54(c) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist With regard to the current appeal, governing law and regulations provide that VA is not required to provide assistance to a claimant if no reasonable possibility exists that such assistance would aid in substantiating the claim (i.e., there can be no entitlement to the benefit as a matter of law). 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). The U.S. Court of Appeals for Veterans Claims (Court) has further held that the VCAA does not apply where the law, and not the evidence, is dispositive of the claim. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA must refrain from providing assistance in obtaining evidence when an appellant, such as in this case, is ineligible for the benefit sought "because of [ ] lack of legal entitlement." 38 C.F.R. § 3.159(d). See also VAOPGCPREC 5-2004; Mason v. Principi, 16 Vet. App. 129 (2002). As will be discussed below in greater detail, the law is dispositive of the issue of whether the appellant is entitled to recognition as an eligible surviving spouse, and, as such, the VCAA does not apply. II. Recognition as an Eligible Surviving Spouse DIC benefits are a payment made by VA because of a service-connected death occurring after December 31, 1956. 38 U.S.C.A. § 101(14); 38 C.F.R. § 3.5(a)(1). "Spouse" is defined by regulation as "a person of the opposite sex whose marriage to the veteran meets the requirements of [38 C.F.R.] § 3.1(j)" under 38 C.F.R. § 3.50(a), but the Board acknowledges that on June 26, 2013, the U.S. Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. 38 C.F.R. § 3.1(j) further defines "marriage" as "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." Id. A "surviving spouse" is defined as a member of the opposite sex who was the spouse of the Veteran at the time of the Veteran's death and who (1) lived with the Veteran continuously since the time of the parties' marriage to the date of the Veteran's death, unless there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse, and (2) except as provided in 38 C.F.R. § 3.55 (pertaining to certain terminations of subsequent marriages), has not remarried and has not held him or herself out to the public as the spouse of a member of the opposite sex with whom he or she was then cohabiting. 38 C.F.R. § 3.50 (b). DIC may be paid to a surviving spouse if the marriage to the Veteran occurred before or during his or her service or, if the marriage took place after service, if (1) the claimant married the Veteran before the expiration of 15 years after the period of service in which the injury or disease that caused the Veteran's death was incurred or aggravated, or (2) the claimant was married to the Veteran for 1 year or more prior to the Veteran's death, or (3) the claimant was married to the Veteran for any period of time if a child was born to the marriage or was born to the couple before their marriage. 38 U.S.C.A. § 1304; 38 C.F.R. § 3.54 (Emphasis added). Pursuant to claims for entitlement to recognition as the surviving spouse of a veteran for DIC benefits, a marriage for VA purposes is established according to 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. See 38 U.S.C.A. 103(c) (West 2002). Thus, the standard of proof outlined in the applicable local law for determining whether or not a marriage existed between the appellant and veteran applies and trumps the "benefit of the doubt" standard generally applicable in the processing of a claim for VA benefits. See Burden v. Shinseki, 25 Vet. App. 178 (2012). The U.S. Court of Appeals for Veterans Claims has also indicated in Scott v. Principi, 3 Vet. App. 352, 354-57 (1992) that VA must pay specific attention to the way in which the applicable local law is applied. The appellant has filed a claim for VA death benefits, to include DIC benefits, asserting entitlement as the Veteran's surviving spouse. The appellant essentially asserts that the length of her marriage to the Veteran should not be a factor for consideration in determining whether to award DIC benefits when, such as in this case, (1) she cohabitated with the Veteran for many years prior to their marriage, (2) she was claimed as a dependent on the Veteran's IRS submissions, (3) she was recognized as the widow by the Social Security Administration (SSA), and (4) the Veteran died prior to the one-year time period following their marriage due to service-connected injuries. In support of her claim, she submitted a 2007 tax return that lists her as an "other" dependent of the Veteran and a copy of the September 2009 SSA determination that informed her that she was "entitled to monthly disabled widow's benefits . . . beginning February 2009." The Board will address each of these arguments in turn. With regard to the appellant's statement that she "cohabitated as husband and wife until [they] got married on 04/[redacted]/08," the Board notes from the onset that the state of Virginia does not acknowledge common law marriages. For a marriage to be valid in the Commonwealth, the Code of Virginia requires that the marriage be under a license and properly solemnized. Va. Code Ann. § 20-13 ("[e]very marriage in this Commonwealth shall be under a license and solemnized in the manner herein provided."). Consistent with the plain language of this statute, the Supreme Court of Virginia has held that "no marriage or attempted marriage, if it took place in this State, can be held valid here, unless it has been shown to have been under a license, and solemnized according to our statutes." Offield v. Davis, 40 S.E. 910, 914 (1902) (holding that a common law marriage is not valid in Virginia because the Code requires a license and solemnization). In any event, even if common law marriages were recognized, the appellant did not state that she and the Veteran held themselves out to others as man and wife, only that they cohabited together as man and wife. Her statements consistently acknowledged that there was no marriage before 2008. For example, her April 2009 statement indicated that "we dated for almost 4 years before we were married, and I have lived in his house since 9-2006, not as his wife." (Emphasis added). With regard to the Appellant's argument that she was listed as a dependent on the Veteran's tax returns, this is not sufficient to establish surviving spouse status. Significantly, the Board notes that the 2007 return indicates the Veteran's status as "head of household" and not as "married" filing jointly or separately. Moreover, the Veteran specifically claimed an exemption for his self and for the appellant as an "other" relationship and did not claim any exception for a "spouse." Next, the Board acknowledges that SSA has recognized the appellant as the Veteran's widow. However, VA is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); see also Martin v. Brown, 4 Vet. App. 136, 140 (1993) (while a SSA decision is not controlling for purposes of VA adjudication, it is "pertinent" to a veteran's claim). Rather, VA has specific regulations in place defining who may be entitled to DIC benefits as a surviving spouse and those regulations control. Lastly, to the extent that the appellant points out that the died prior to the one-year time period following their marriage due to service-connected injuries, the Board notes that service-connection for the cause of the Veteran's death was granted in the April 2009 rating decision. The question of whether the Appellant is a "surviving spouse" for purposes of DIC and pension benefits, however, involves a different factual inquiry than the reason for the Veteran's death. In this case, the Board observes that the evidence of record clearly reflects that the appellant and the Veteran were married in April 2008, and that the Veteran died ten months later in February 2009. Thus, the couple was not married for at least one year prior to the Veteran's death, or within fifteen years of the Veteran's separation from service in April 1972. Additionally, no children were born to the couple either during the marriage or before the marriage. Consequently, although the appellant meets the regulatory definition of a surviving spouse under 38 C.F.R. § 3.50, she is not eligible for VA DIC benefits due to the timing of her marriage to the Veteran which occurred less than one year prior to his death. 38 U.S.C.A. § 1304; 38 C.F.R. § 3.54. The Board sympathizes with the appellant's position and expresses its sincere regret with respect to the appellant's loss of her husband. However, the Board is bound by the applicable law and regulations, and is unable to provide a legal remedy that conflicts with the legal requirements set forth under the law. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) ("This Court must interpret the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'")). Accordingly, as the marriage between the appellant and the Veteran does not meet the applicable criteria for receipt of DIC benefits as set forth by statute and regulation, the appellant is not an eligible surviving spouse for the purpose of receiving such benefits. Therefore, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). (CONTINUED ON THE NEXT PAGE) ORDER Entitlement to recognition as an eligible surviving spouse for purposes of receiving VA DIC and death pension benefits is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs