Citation Nr: 1729338 Decision Date: 07/26/17 Archive Date: 08/04/17 DOCKET NO. 13-18 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUE Entitlement to recognition of the appellant as the surviving spouse of the Veteran for the purpose of establishing entitlement to Dependency and Indemnity and Compensation (DIC) benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Kersten, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1970 to October 1971. The Veteran died on January [REDACTED], 2010. The Veteran and the appellant were legally married on April [REDACTED], 2009, and she seeks recognition as his surviving spouse for DIC benefits purposes. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 Administrative decision by the Department of Veterans Affairs (VA) Service Center in Auburn, Washington, which notified the appellant, in pertinent part, that her claim for entitlement to DIC, accrued and death pension benefits remained denied. The Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota, has jurisdiction over the appellant's claim. In her June 2014 VA Form 9, the appellant requested a Board hearing via live videoconference at the local RO. In March 2014, the appellant submitted a notice withdrawing that request. FINDINGS OF FACT 1. The Veteran and the appellant were married in April [REDACTED], 2009, and had no children together. 2. The Veteran died on January [REDACTED], 2010. 3. The appellant and the Veteran were married for less than one year prior to the Veteran's death. 4. Common law marriage is not recognized in Minnesota, and the establishment of a marital relationship for VA purposes prior to the date of their April [REDACTED], 2009, 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. §§ 101, 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 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 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, the facts are not disputed and 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). With respect to the appellant's claim, neither she nor her representative have alleged that VA has not fulfilled its duty notify or assist in the development of her claim. Moreover, review of the record fails to reveal any deficiency with respect to either the duty to notify or assist. Therefore, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Analysis The appellant contends that despite the fact that she and the Veteran were not married for a year prior to his death, she should be recognized as the Veteran's surviving spouse for the purposes of entitlement to DIC benefits. The essential facts in this case are not in dispute. The appellant and the Veteran were married on April [REDACTED], 2009, and the Veteran died on January [REDACTED], 2010. The appellant contends that she and the Veteran lived together beginning in April 2006, in the same manner they did after being married in April 2009, and that therefore, their relationship should be considered as if they had been married for more than the statutorily required one-year period. The Board notes that a copy of the Veteran and appellant's marriage certificate is not in the claims file. However, documents included in the claims file indicate that the original claims file was lost and had to be rebuilt. The appellant was recognized as the Veteran's spouse at the time of his death. A VA notification letter to the Veteran dated in June 2009 notes that because the Veteran submitted documentation within a year of dependency, the appellant was able to be added to the award from the first day of the month after marriage, specifically, May 01, 2009. The appellant has identified April [REDACTED], 2009, as the date of her marriage to the Veteran. This date is not disputed, and therefore is accepted as the effective date of the appellant's marriage to the Veteran. 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) (2016). When a veteran dies, his or her surviving spouse may be eligible to VA death benefits, to include DIC benefits, death compensation, and death pension. See 38 U.S.C.A. §§ 1121, 1310, 1541; 38 C.F.R. §3.50(a). VA DIC benefits are payable to a surviving spouse who was married to a 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; 38 C.F.R. § 3.54(c). 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). 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) (2016). The State of Minnesota, the state in which the appellant and the Veteran resided together, does not recognize common-law marriages created within the state. See Minn. St. 517.01 (2016). 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 (2016). In this case, the facts do not demonstrate that the appellant satisfies the requirement to be recognized as the Veteran's surviving spouse for VA purposes. Initially, the Board notes that the Veteran and the appellant married in April 2009, more than 15 years after the Veteran's discharge from service in October 1971. Additionally, the Veteran and the appellant were married for just over nine months prior to his death, thus less than one year. The appellant has not contended, and there is no evidence to support a finding that a child was born of the marriage. Thus, the marriage between the appellant and the Veteran does not meet the requirements of 38 C.F.R. § 3.54(b). In support of her claim to overcome this bar to eligibility, the appellant has contended that she and the Veteran cohabitated for approximately three years prior to their marriage, were recognized as a couple, and had the intention to of becoming married for some time prior to the official act. Indeed, the appellant has submitted statements from no fewer than eight friends, family members and neighbors who attested to the strength and loving nature of the relationship between the appellant and the Veteran, as well as the fact that they cohabitated for three years prior to their marriage. These supporting statements all confirm the essential dates of cohabitation beginning in April 2006 and marriage in April 2009. None of the statements purport to show that the Veteran and the appellant believed they were legally married prior to April 2009. The appellant does not contend that she and the Veteran believed that they were legally married or in a "common law marriage" prior to April 2009, and in her Statement of Marital Relationship dated November 2010, she stated that the Veteran insisted that they marry when he came to understand that in order to secure her eligibility to VA benefits, they were required to be married for at least one year. This further demonstrates that they did not believe themselves married prior to their April 2009 wedding. The Board finds that 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. The appellant and the Veteran were not legally married for at least one year prior to the Veteran's death on January [REDACTED], 2010, there is no evidence of record showing that the appellant and the Veteran believed themselves to be married prior to their April 2009 marriage, and there is no basis upon which to find that a common law marriage between the appellant and the Veteran may be "deemed valid" under 38 U.S.C.A. § 103 and 38 C.F.R. §§ 3.52, 3.205. See 38 C.F.R. § 3.1(j). 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 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has carefully reviewed the appellant's arguments, and the law has been considered in the most favorable light possible; however, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2014); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414 (1990). While the Board is sympathetic to the appellant's circumstances, the Board finds that the weight of the evidence is against a finding that the appellant is the Veteran's surviving spouse for VA DIC benefits purposes; therefore, the question of entitlement to DIC benefits is without legal merit, and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to recognition of the appellant as the Veteran's surviving spouse for the purpose of eligibility for VA death benefits is denied. ____________________________________________ LESLEY A. REIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs