Citation Nr: 1800056 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-19 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for the purpose of eligibility for VA death benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1955 to January 1975. He died in December 2008, and the appellant seeks recognition as his surviving spouse for the purpose of eligibility for VA death benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2010 and July 2011 letters of determination of the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. Jurisdiction of this case currently rests with the Regional Office (RO) in Seattle, Washington. In connection with this appeal, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2017 and accepted that hearing in lieu of an in-person hearing before a member of the Board. A transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. The parties were married on December [REDACTED], 2008; the Veteran died approximately one hour thereafter. 2. Said marriage did not occur before the expiration of 15 years after the termination of the Veteran's period of service; did not last for one year or more; and was not productive of a child. 3. Washington State does not recognize common law marriage. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran's surviving spouse for purpose of eligibility for VA death benefits have not been met. 38 U.S.C. §§ 1102, 1304, 1541 (2012); 38 C.F.R. §§ 3.1, 3.54 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant seeks recognition as the surviving spouse of the Veteran for the purpose of establishing eligibility for VA death benefits. VA death benefits may be paid to a surviving spouse who was married to a veteran: (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; (2) for 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. §§ 1102, 1304, 1541 (2012); 38 C.F.R. § 3.54 (2017). Here, the evidence of record establishes that the parties were married for two distinct periods of time. They first married in December 1979 and divorced in September 1988. The parties subsequently remarried on December [REDACTED], 2008, and the Veteran died approximately one hour thereafter. The appellant now contends that the circumstances of both periods of marriage, taken collectively, give rise to eligibility for VA death benefits. The Board disagrees with that theory of entitlement. The appellant's status as a surviving spouse cannot be based upon the collective circumstances of the parties' two marriages, as the September 1988 divorce effectively severed the marital bond that existed at that time. Thus, entitlement to VA death benefits is based upon the nature of the marriage existing at the time of the Veteran's death. As such, the Board finds that the marriage of December 2008 did not occur before the expiration of 15 years after the termination of the Veteran's period of service; did not last for one year or more; and was not productive of a child. The appellant has offered two responses to those findings. First, she has alleged that the parties were engaged in a common law marriage prior to the December 2008 union which lasted for more than one year. The record reflects that the parties were residents of Washington State for the duration of their relationship, where the Veteran also died. Thus, the Board must consider Washington state laws in determining whether the parties were engaged in a valid common law marriage for at least one year prior to the Veteran's death. See 38 C.F.R. § 3.1(j) (2017). In doing so, the Board finds that Washington State does not recognize common law marriages. See Wash. Rev. Code. Ann. § 26.04.020. Thus, any such considerations pertaining to the length or nature of the parties' relationship is hereby rendered moot, as the claim may not succeed on that ground. See also Certificate of Marriage dated December 2008 (reporting separate addresses for the parties); lay statement dated November 2010 (containing appellant's reports that she and the Veteran resumed their relationship in February 2008). Further, the appellant notes that the parties share one son, born in April 1979, such that she now qualifies for VA death benefits. Again, the Board does not find that argument to be compelling, as the parties' son was born preceding their first period of marriage and the parties did not function as one family unit following their divorce. As such, the Board finds that the birth of their son is attributable to the first period of marriage, and is not sufficient upon which to base a finding of eligibility pertaining to the appellant's claim for benefits. Briefly, the Board also observes that several affidavits have been submitted pertaining to the Veteran's capacity to consent to marriage in the hours preceding his death. In light of the above discussion, the Board finds that consideration of the Veteran's mental state is not necessary at this time. Accordingly, the weight of evidence in this case does not demonstrate that the parties' December 2008 marriage occurred before the expiration of 15 years after the termination of the Veteran's period of service; lasted for one year or more or constituted a valid common law marriage in Washington State; or was productive of a child. Thus, the appellant does not meet the requirements for entitlement to VA death benefits. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to recognition of the appellant as the Veteran's surviving spouse for the purpose of eligibility for VA death benefits is denied. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs