Citation Nr: 1751732 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 17-26 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to recognition of the appellant as the surviving spouse of the Veteran for purposes of establishing entitlement to dependency and indemnity compensation (DIC) and/or death pension benefits. 2. Entitlement to accrued benefits. ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1954 to April 1956. He died in September 2006, and the appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which found that the appellant did not meet the criteria to be considered the Veteran's surviving spouse. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran and the appellant were married in October 2005, and they were married at the time of the Veteran's death in September 2006, a time period of less than one year. 2. The appellant and the Veteran had no child born of their marriage or born to them before their marriage, and they did not live together in a jurisdiction that recognizes common law marriage. 3. There is no indication or allegation that the appellant did not have knowledge of the legal impediment to their purported common law marriage. 4. The appellant did not file a claim for entitlement to accrued benefits within one year of the Veteran's death in September 2006. CONCLUSIONS OF LAW 1. The criteria for recognition of the appellant as the Veteran's surviving spouse for purposes of establishing eligibility for DIC and death pension are not met. 38 U.S.C.A. §§ 101, 103, 1102, 1311, 5121 (West 2014); 38 C.F.R. §§ 3.50, 3.54, 3.55, 3.1000 (2017). 2. Entitlement to accrued benefits is not warranted as a matter of law. 38 U.S.C.A. § 5121 (West 2014); 38 C.F.R. § 3.1000 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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) (2017). Resolution of this 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. Death Pension and DIC Benefits The appellant seeks recognition as the Veteran's surviving spouse for purposes of establishing eligibility for VA death benefits. 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). 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). Except as provided in 38 C.F.R. § 3.52, the term "surviving spouse" 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 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 38 C.F.R. § 3.55, has not remarried or has not since the death of the Veteran and, after September 19, 1962, lived with another person 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). Under 38 C.F.R. § 3.54(a), death pension may be paid to a surviving spouse who was married to the Veteran after his separation from service and if they were married (1) for 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, or (3) prior to February 1, 1965 for Korean War veterans. Under 38 C.F.R. § 3.54(b) and (c), a surviving spouse may qualify for VA death compensation and DIC benefits purposes if she married the Veteran after his separation from service and they were married (1) before the expiration of 15 years after the termination of the period of service in which the injury or disease causing death was incurred or aggravated, or, (2) for one year or more, or, (3) for any period of time if a child was born of the marriage or before the marriage. For a person to establish recognition as a surviving spouse of a veteran, there must be evidence of a valid marriage to the veteran under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). VA defines a "marriage" as a marriage valid under the law of the place where the parties resided at the time of marriage, or the laws of the place where the parties resided when the right to benefits accrued. 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). The Commonwealth of Puerto Rico does not recognize common-law marriages. See Delgado v. Bowen, 651 F. Supp. 1320, 1321 (D.P.R. 1987); U.S. v. Ortiz-Graulau, 397 F. Supp. 2d 345, 349 (D. P.R. 2005). Where an attempted marriage of a claimant to the Veteran is invalid by reason of a legal impediment, the marriage will nevertheless be deemed valid if: (1) the marriage occurred 1 year or more before the Veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage, and (2) the claimant entered into the marriage without knowledge of the impediment, and (3) the claimant cohabited with the Veteran continuously from the date of marriage to the date of his or her death, and (4) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the Veteran's death. 38 C.F.R. § 3.52. VA's Office of General Counsel has interpreted "legal impediment" to include the requirement of a marriage ceremony by a jurisdiction which does not recognize common-law marriages. VAOPGCPREC 58-91. The facts of this case are not in material dispute. The appellant and the Veteran were married in October 2005 in Puerto Rico and the Veteran died in September 2006 in Puerto Rico. They did not have any children together before or during their marriage. See March 2016 VA Form 21-534EZ, Application for DIC, Death Pension and/or Accrued Benefits; September 2006 Death Certificate. Here, although the Appellant appears to meet the basic definition of a surviving spouse under 38 C.F.R. § 3.50, the more exacting criteria for entitlement to surviving spouse status for purposes of establishing entitlement to VA death benefits under 38 C.F.R. § 3.54 are not met. The Veteran and the appellant were married in 2005, which is not within 15 years of the Veteran's separation from service in 1956. Nor were they married prior to February 1, 1965. They were not married for at least one year prior to the Veteran's death, and they did not have children together. On the appellant's March 2016 application, she indicated that although she was not married to the Veteran until October 2005, they were "common law" from 2003. However, as noted above, common law marriage is not recognized in Puerto Rico. Further, there is no evidence or argument that the appellant believed herself to actually be married under the law prior to October 2005, 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). Accordingly, notwithstanding that the appellant was married to the Veteran at the time of his death, she had not been married to him for one year or more and they had no child together. The Board is bound by the law on this matter, and is without authority to grant the benefit sought on an equitable basis. Inasmuch as the appellant was legally married to the Veteran for less than one year at the time of his death, and as no statutory or regulatory exceptions to this rule apply, there is no legal basis to grant the appeal for basic eligibility for VA death benefits. As this appeal must be denied as a matter of law, the benefit of the doubt rule is not for application. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board is sympathetic to the appellant's claim, but is obligated to apply the relevant laws and regulations. The Board is grateful to the Veteran for his honorable and faithful service and regrets that a more favorable decision could not be reached. III. Accrued Benefits Accrued benefits are defined as "periodic monetary benefits to which a payee was entitled at his death under existing ratings or decisions, or those based on evidence in the file at the date of death and due and unpaid for a period not to exceed two years." See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000 (a). Accrued benefits may be paid upon the death of a veteran to his or her spouse. 38 C.F.R. § 3.1000 (a)(1)(i). For these purposes, a qualifying surviving spouse means that the marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1 (j) (concerning a marriage that is valid under applicable state laws) or 38 C.F.R. § 3.52 (concerning a marriage that is deemed valid by VA). Where the marriage meets the requirements of 38 C.F.R. § 3.1 (j), the date of marriage and continuous cohabitation are not factors for consideration. 38 C.F.R. § 3.1000 (d)(1). A claim for death pension, compensation, or DIC is deemed to include a claim for any accrued benefits. 38 C.F.R. §§ 3.152 (b), 3.1000(c). Unlike other death benefits, however, the application for accrued benefits must be filed within one year after the date of death. 38 C.F.R. § 3.1000 (c). In the instant matter, the Veteran died in September 2006. The appellant did not make her claim for death benefits, to include accrued benefits, until more than a year after the Veteran's death. Thus, the appellant has no legal entitlement to accrued benefits because her application was not timely filed as required by the statute governing claims for accrued benefits. Because there is no evidence that the appellant filed a claim for accrued benefits in the year after the Veteran's death; the appellant's claim for accrued benefits must be denied as a matter of law. (CONTINUED ON NEXT PAGE) ORDER Recognition of the appellant as the Veteran's surviving spouse for VA death benefits purposes is denied. Entitlement to accrued benefits is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs