Citation Nr: 1701366 Decision Date: 01/19/17 Archive Date: 01/27/17 DOCKET NO. 12-01 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Whether the appellant qualifies as the Veteran's surviving spouse for the purpose of establishing VA death pension benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is the widow of a Veteran who served on active duty from March 1966 to December 1969 and died in June 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2010 decision of the Boston, Massachusetts Department of Veteran Affairs (VA) Regional Office (RO). Although the appellant originally requested a hearing before the Board, she withdrew that request by September 2016 correspondence. FINDINGS OF FACT 1. The Veteran died on June [redacted], 2009 and served in the military between March 1966 and December 1969. 2. Legal documents confirm the Veteran and the appellant were married on April [redacted], 2009. 3. There is no evidence or allegation that any children were born to the appellant and the Veteran at any time during their relationship, or that the appellant is expecting to give birth to the Veteran's child. 4. Common law marriage is not recognized under Massachusetts state law. CONCLUSION OF LAW The appellant does not meet the legal criteria to qualify as a "surviving spouse" for purposes of establishing VA death pension benefits. 38 U.S.C.A. § 101 (31) (West 2014); 38 C.F.R. §§ 3.1 (j), 3.50, 3.54, 3.205 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance As the facts of this case are not in dispute and the governing statutory and regulatory laws are dispositive, VA's duties to notify and assist are not applicable, and any discussion thereof is unnecessary. See Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Legal Criteria, Factual Background, and Analysis The appellant is the widow of a Veteran who served on active duty for several years during the Vietnam War. He died on June [redacted], 2009 and was not service-connected for any disabilities during his lifetime. Death pension benefits are generally available for surviving spouses as a result of a veteran's nonservice-connected death. 38 U.S.C.A. § 1541 (a). However, a threshold matter to consider in such claims is whether an appellant qualifies as a "surviving spouse" for VA purposes. To establish such status, the appellant must have been validly married to the Veteran under the laws of the appropriate jurisdiction and she must meet the criteria of a surviving spouse. See 38 U.S.C.A. §§ 1311, 1541; 38 C.F.R. §§ 3.1 (j), 3.50. For VA benefit purposes, a "spouse" is a person who is a husband or wife. 38 U.S.C.A. § 101(31). A marriage must be "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 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). In addition, there are time and length of marriage requirements to consider. Specifically, the appellant must have been married to the Veteran either (1) one year or more prior to the veteran's death; (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 this Veteran, who served during the Vietnam era, prior to May 8, 1985. 38 C.F.R. § 3.54(a). Here, the appellant submitted a marriage certificate showing she and the Veteran were married on April [redacted], 2009. Although this is certainly a valid marriage, it did not occur before or during the Veteran's service, one or more years prior to the Veteran's death, or prior to May 8, 1985. Thus, the appellant does not meet the strict length or timing eligibility requirements set forth in 38 C.F.R. § 3.54(a). Moreover, while these requirements are moot in cases where there is a child born of or prior to the marriage, the appellant does not allege, nor is there any evidence otherwise suggesting, that she and the Veteran had children at any time before or during the marriage. See 38 C.F.R. § 3.54(a)(2). There is also no evidence or allegation that she is expecting to give birth to a child of the Veteran, and while the Board has the deepest sympathies regarding her report of a past miscarriage with the Veteran, such an event unfortunately does not fall within the definition of a "child born of the marriage" for VA purposes. See 38 C.F.R. § 3.54(d). Consequently, there is no basis for setting aside the timing and length eligibility requirements laid out above. The Board has considered the appellant's August 2010 statement indicating she and the Veteran lived together "as husband and wife" for over thirty years. Ordinarily, this would raise the possibility of a common law marriage that might satisfy the basic eligibility requirements for death pension benefits even without an "official" marriage with the requisite timing or length. However, such marriages are only valid if recognized by governing state law. Here, the appellant and the Veteran lived together in Massachusetts at the time of his death, the laws of which do not recognize common law marriages. Thus, their time together is, unfortunately, not helpful in establishing her status as a "surviving spouse" for VA purposes. In light of the above, the Board finds no basis for establishing the appellant as an eligible "surviving spouse" for purposes of VA nonservice-connected death benefits. While the Board is deeply sympathetic to the appellant's claim, the weight of her loss, and her current hardship, it is bound by the governing law in this case. As such, the preponderance of the evidence is against the appellant's claim, the benefit of the doubt rule does not apply, and the appeal must be denied. ORDER The appeal is denied. ____________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs