Citation Nr: 1337696 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-29 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to recognition as the Veteran's surviving spouse. ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had active service from July 1965 to April 1969. He died in September 2006, and the appellant is seeking to establish benefits as his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. A review of the Veteran's Virtual VA claims folder and Veterans Benefits Management System claims folder reveals only evidence that is duplicative of that which is already contained in the paper claims file or irrelevant to the issue on appeal. FINDING OF FACT The appellant and the Veteran did not have continuous cohabitation from the date of their marriage to the date of his death, and their separation was not due to misconduct of or procured by the Veteran without fault of the appellant. CONCLUSION OF LAW The criteria for recognition as the Veteran's surviving spouse have not been met. 38 U.S.C.A. § 101 (West 2002); 38 C.F.R. §§ 3.50, 3.53, 3.102 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) describes VA's duties 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). The VCAA has been considered; however, the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). In the present case, there is no legal basis upon which the sought death benefits may be awarded, and the appellant's claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Law, Regulations, and Analysis The appellant has applied for death benefits asserting that she is the Veteran's surviving spouse. A surviving spouse is defined as a person (a) of the opposite sex; (b) who was the spouse of the veteran at the time of the veteran's death; (c) 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 (d) who has not remarried (or engaged in conduct not applicable here). 38 U.S.C.A. § 101(3); see also 38 C.F.R. § 3.50(b). Although they have not yet been amended, the Title 38 provisions defining a spouse as a person of the opposite sex are substantively identical to definitions in Section 3 of the Defense of Marriage Act (DOMA) that the Supreme Court declared unconstitutional in United States v. Windsor, No. 12-307, 133 S, Ct. 2675 (June 26, 2013). The appellant asserts that she and the Veteran were in a common law marriage from 1984 to 1997. She has submitted statements from other people asserting that she and the Veteran held themselves out as married during this time. Furthermore, an August 1988 claim from the Veteran to VA shows that he listed the appellant as his wife. The State of Kansas, where the appellant and the Veteran were living at the time the Veteran submitted the VA claim in 1988, recognizes common law marriage in certain circumstances. To establish a common-law marriage in Kansas, a plaintiff must prove (1) capacity of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out to the public as husband and wife. Fleming v. Fleming, 559 P.2d 329, 331 (Kansas 1977). Each element must coexist to establish a common-law marriage. Id. "Although the marriage agreement need not be in any particular form, it is essential there be a present mutual consent to the marriage between the parties." Driscoll v. Driscoll, 552 P.2d 629, 632 (Kansas 1976). The burden to prove a common-law marriage rests upon the party asserting it. In re Adoption of X.J.A., 166 P.3d 396 (Kansas 2007). Based on the foregoing, it does appear that the Veteran and the appellant established a common law marriage in Kansas. Nevertheless, the appellant has stated that she and the Veteran separated in 1997. Thereafter, they both married other people in 2000. The Veteran's September 2006 death certificate indicates that he was divorced at the time of his death. A March 2008 decree shows that the appellant subsequently obtained a divorce. As previously noted, a surviving spouse is defined by law as a person who was the spouse of the veteran at the time of the veteran's death and who was living with the veteran continuously from the date of marriage to the date of death. Thus, in this case, the separation of the appellant and the Veteran in 1997 and their subsequent remarriages bar the appellant from eligibility for status as the Veteran's surviving spouse, as they were not living together continuously since the date of the common law marriage. 38 U.S.C.A. § 101(3) ("surviving spouse means . . . a person . . . who lived with the veteran continuously from the date of marriage to the date of the veteran's death."); 38 C.F.R. § 3.50(b)(2). Indeed, the appellant has admitted that they separated in 1997 and remarried other individuals in 2000. Thus, the separation could not be considered temporary in nature. In addition, the Board notes that the appellant filed a VA Form 21-534 in June 2007. That form specifically requested information regarding the marital history. Although there was a box to check if the appellant had lived continuously with the Veteran from the date of marriage to the date of his death, she did not mark the box. She also noted that she had married two times, which would have been the Veteran and her subsequent marriage to another individual. Thus, she does not appear to have alleged that she remarried the Veteran. While there is an exception to the continuous cohabitation rule in cases where the separation was due to misconduct of or procurement by the Veteran, none of the evidence of record even suggests that this is the case. It is clear from the record that the Veteran and the appellant mutually agreed to separate in 1997, and the appellant has not contended otherwise. The Board does acknowledge that the record does not include a divorce decree for the appellant and the Veteran. However, even if they were not legally divorced following their common law marriage, the evidence shows that they did not have continuous cohabitation from the date of marriage to the date of death of the Veteran. Moreover, if they were legally divorced, then the appellant could not be the surviving spouse because she would have had a subsequent valid marriage that did not result in divorce until after the Veteran's death. The Board understands the appellant's assertions that she lived and raised children with the Veteran for many years. However, none of these factors affect the determination as to whether she is recognized for VA purposes as the Veteran's surviving spouse. As explained above, the appellant and the Veteran did not have continuous cohabitation from the date of their marriage to the date of his death, and their separation was not due to the Veteran's misconduct or procured by the Veteran without fault of the appellant. Consequently, recognition of the appellant as the Veteran's surviving spouse is legally precluded, and her claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board is bound by the applicable statutes and regulations. ORDER Entitlement to recognition as the Veteran's surviving spouse is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs