Citation Nr: 1514075 Decision Date: 04/01/15 Archive Date: 04/09/15 DOCKET NO. 09-16 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to recognition of the appellant as the surviving spouse of the Veteran for the purposes of eligibility for VA death benefits. REPRESENTATION Appellant represented by: Attorney Sean Kendall ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran served on active duty from October 1940 to August 1946. He died in July 2007. The appellant is the Veteran's widow. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied a claim for VA death benefits because the Appellant did not meet the eligibility requirements for such benefits. For clarification, the Board has recharacterized the issue on appeal as entitlement to recognition of the appellant as the surviving spouse of the Veteran for the purpose of receiving VA death benefits. In a May 2013 decision, the Board denied the appellant status as the Veteran's surviving spouse for VA death benefits. The appellant subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). While that case was pending at the Court, the Veteran's attorney and the VA Office of the General Counsel filed a joint motion to vacate the Board's decision and remand the Veteran's claim for readjudication. In an August 2014 Order, the Court granted the motion, vacated the Board's May 2013 decision, and remanded this case to the Board for readjudication. FINDINGS OF FACT 1. The Veteran and the appellant were married on July [redacted], 2006 and had no children together. 2. The Veteran died on July [redacted], 2007. 3. Common law marriage is not recognized in Arizona, and the establishment of a marital relationship for VA purposes prior to the date of their July [redacted], 2006 marriage cannot otherwise be established. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran's surviving spouse for the purpose of VA death benefits have not been met. 38 U.S.C.A. §§ 103, 1102, 1304, 1310, 1311, 1541 (West 2014); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53, 3.54, 3.205 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Resolution of the claim turns on interpretation of the applicable laws and regulations pertaining to entitlement to VA death benefits. As the issue turns on a matter of law, further assistance, such as the further procurement of records, would not assist the appellant with the appealed issue. Consequently, no further notice or development under the VCAA is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). II. Law and Analysis The appellant contends that she should be recognized as the Veteran's surviving spouse for purposes of entitlement to Dependency and Indemnity Compensation (DIC) benefits. DIC and death pension benefits may be paid to the surviving spouse of a Veteran in certain circumstances. 38 U.S.C.A. §§ 1310, 1541(a) (West 2014). Except as provided in 38 C.F.R. § 3.52, the term "surviving spouse" 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 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 the fault of the spouse; and (2) except as provided in § 3.55, has not remarried or has not 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) (2014). VA death 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. 38 U.S.C.A. §§ 1102, 1304, 1541 (West 2014); 38 C.F.R. § 3.54 (2014). One claiming to be the spouse of a Veteran has the burden to come forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The threshold question that must be addressed in any claim for VA benefits is whether the person seeking the benefit is a proper claimant for the benefit sought. If the appellant is not established as a proper claimant, the claim can proceed no further. The appellant has the burden to establish her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). A Certificate of Marriage from the State of Arizona shows that the Veteran and the appellant were married on July [redacted], 2006. A certificate of death shows that the Veteran died on July [redacted], 2007 and that the marriage was terminated due to the Veteran's death. The appellant does not dispute the validity of the marriage certificate or death certificates. She acknowledges in June 2008 and May 2009 statements that she and the Veteran were married "just days short" or "two weeks short" of one year. Further, the appellant did not have a child with the Veteran during their marriage or prior to the marriage. The appellant further contended that in the months prior to their actual date of marriage, she and the Veteran presented themselves as a married couple, as indicated in a prenuptial agreement processed months prior to the actual marriage. For VA benefits purposes, 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 right to benefits accrued. 38 C.F.R. § 103(c) (West 2014); 38 C.F.R. §3.1(j) (2014). Arizona, the state in which the appellant and the Veteran resided together, does not recognize common-law marriages created within the state. See A.R.S. § 25-111. Where an attempted marriage of a claimant to a Veteran was invalid by reason of a legal impediment, the marriage can nevertheless be deemed valid if: (a) the purported 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 entered into the purported marriage with no knowledge of the legal impediment; (c) the claimant lived with the Veteran continuously from the date of marriage to the date of death; and (d) no claim has been filed by a legal surviving spouse who has been found to be entitled to gratuitous VA benefits. 38 C.F.R. § 3.52 (2014). VA's General Counsel has held in a precedent opinion that an appellant's lack of knowledge that a common law marriage is not recognized by the appropriate jurisdiction is a legal impediment that does not necessarily bar recognition of the marriage for VA purposes. VAOPGCPREC 58-91 (June 17, 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, 108 (1996); Sandoval, 7 Vet. App. at 9-10. The Board does not find that the appellant and the Veteran were in an attempted common law marriage one year or more prior to the Veteran's death. In this regard, a January 2006 letter from the Veteran's attorney, H.C., shows that a conference was held on December 2005 because the Veteran and the appellant were considering marriage and desired a premarital agreement. In a December 2005 document addressed to H.C., the Veteran stated that "per our phone conversation last Wednesday I am adding the following comments regarding the draft pre-marital agreement." In item 3 of that document, the Veteran stated that "tentative plans are for [appellant] to sell [her home] first and move in with me." Thus, as of December 2005, the appellant and the Veteran were not living together. Notably, the premarital agreement was not signed by the parties and notarized until July 28, 2006. The premarital agreement specifically states the appellant and the Veteran planned to get married within the next 30 days. A marriage license was issued that day, and they were married three days later. This evidence contradicts the appellant's May 2009 statement that the premarital agreement was being processed approximately two months before their actual marriage. Importantly, the premarital agreement contains a clause that states "no agreements or rights before marriage." It is logical to conclude that if the Veteran and the appellant considered themselves legally married prior to July [redacted], 2006, this clause would not have been included in the premarital agreement. Thus, contrary to the appellant's June 2008 and May 2009 statements, the more probative evidence does not indicate that she and the Veteran had been presenting themselves as a married couple prior to their July [redacted], 2006 marriage. Therefore, the more probative evidence does not show that the appellant and the Veteran were in an attempted common law marriage one year or more prior to the Veteran's death. See 38 C.F.R. § 3.52. Furthermore, to the extent that the appellant is contending that she was unaware of the legal impediment to common law marriage in Arizona, the Board does not find this assertion to be credible. Notably, the appellant has not submitted a signed statement reflecting that she had no knowledge that Arizona did not recognize common law marriage. 38 C.F.R. § 3.205(c). In summary, the appellant and the Veteran were not legally married for one year prior to the Veteran's death in July 2007 and did not have a child together. The appellant and the Veteran were not in an attempted common law marriage for one year or more prior to his death. The preponderance of the evidence of record is against the appellant's claim that she is entitled to recognition as the surviving spouse of the Veteran for the purpose of receiving VA death benefits. 38 U.S.C.A. § 103; 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.54. Therefore, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to recognition of the appellant as the Veteran's surviving spouse for the purposes of eligibility for VA death benefits is denied. ____________________________________________ S. HENEKS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs