Citation Nr: 18140150 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 14-44 039A DATE: October 2, 2018 ORDER Entitlement to recognition of the appellant as the surviving spouse of the Veteran for purposes of receiving dependency and indemnity compensation (DIC), death pension and accrued benefits is denied. FINDINGS OF FACT 1. The Veteran and the appellant married in March 1975. 2. The Veteran and the appellant divorced in May 2007. 3. The Veteran died in December 2010. CONCLUSION OF LAW The criteria for entitlement to recognition as the surviving spouse of the Veteran, for the purpose of receiving DIC, death pension and accrued benefits have not been met. 38 U.S.C. §§ 101(3), 103, 1310; 38 C.F.R. §§ 3.1(j), 3.5, 3.50 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that she is entitled to DIC benefits as the ex-wife of the Veteran. Governing law provides that DIC benefits may be paid to the surviving spouse of a veteran if certain requirements are met. 38 U.S.C. §§ 1304, 1310, 1311, 1541. VA death benefits may be paid to a surviving spouse who was married to the veteran (1) before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the death of the veteran 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; 38 C.F.R. § 3.54. For VA purposes, a marriage is considered valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 U.S.C. § 103(c); 38 C.F.R. § 3.1(j). To be recognized as the Veteran’s surviving spouse for the purpose of establishing entitlement to VA death benefits, the appellant must be 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 U.S.C. § 101(3); 38 C.F.R. § 3.50(b)(1). The appellant must also have lived with the Veteran continuously from the date of the marriage to the date of the Veteran’s death except, as provided in 38 C.F.R. § 3.53(a), where there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse; and the claimant cannot have remarried since the death of the Veteran and after September 19, 1962, or lived with another person and held himself or herself out openly to the public to be the spouse of such other person. Id.;38 C.F.R. § 3.53, 3.55 (2017). The evidence of record reflects that the Veteran and the appellant were married in March 1975 and divorced in May 2007. The Veteran and the appellant did not remarry following the divorce, nor did they live together following the divorce; the appellant resided in California while the Veteran resided in Oregon. These facts are not in dispute. See March 2018 hearing transcript. Nonetheless, the appellant maintains that she is entitled to DIC benefits. As cited above, the criteria for recognition as a surviving spouse for purposes of entitlement to DIC requires that an appellant was the spouse of the Veteran at the time of the Veteran’s death. See 38 U.S.C. §§ 101(3), 1310; 38 C.F.R. §§ 3.5, 3.50(b). Though 38 C.F.R. § 3.53(a) provides an exception to the requirement of continuous cohabitation from the date of marriage to the date of death of the Veteran, where such separation was due to the misconduct of the Veteran and was not the fault of the surviving spouse, this exception requires that the parties still be legally married at the time of the Veteran’s death, which the appellant and the Veteran were not. 38 C.F.R. §§ 3.50, 3.53(a). To the extent the appellant argues that there was a common law marriage, they lived in different states following the divorce and neither Oregon nor California recognizes common law marriage. See Or. L. §§ 9723, 9724, 9729, 9731; Cal. Fam. Code § 300. Further, the appellant does not contend that they cohabitated continually from the time after the divorce until the Veteran’s death. See 38 C.F.R. § 3.52. Accordingly, the undisputed evidence of record shows that the appellant was not married to the Veteran at the time of his death. (Continued on the next page)   The Board is sympathetic to the appellant’s assertions; however, the appellant may not be recognized as his surviving spouse for entitlement to DIC, death pension and accrued benefits. Accordingly, her claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Counsel