Citation Nr: 18140431 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 16-00 819 DATE: October 4, 2018 ORDER Entitlement to recognition as the surviving spouse for purposes of VA Dependency and Indemnity Compensation (DIC) is denied. FINDING OF FACT The appellant and the Veteran were not married during the Veteran’s lifetime. CONCLUSION OF LAW As the appellant may not be recognized as the Veteran’s surviving spouse for the purpose of eligibility for VA death benefits, to include DIC, the claim on appeal is without legal merit. 38 U.S.C. §§ 1310, 1311; 38 C.F.R. §§ 3.1(j), 3.50, 3.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 until July 1971. The Veteran passed away in November 2013. The appellant asserts that she is the surviving spouse of the Veteran. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Paul, Minnesota. The appellant filed a notice of disagreement in July 2015 and received a statement of the case in October 2015. The appellant perfected her appeal with a December 2015 VA Form 9. The appellant did not request a hearing in this case. The Veteran received a supplemental statement of the case in April 2016. Entitlement to recognition as the surviving spouse for purposes of VA Dependency and Indemnity Compensation (DIC) The appellant contends that she should be recognized as the surviving spouse of the Veteran in order to receive VA death benefits. She maintains that, at the time of the Veteran’s death, she was his lawful spouse. To be recognized as a veteran’s surviving spouse for the purpose of establishing entitlement to VA death benefits, the claimant must be a person of the opposite sex who was the spouse of a veteran at the time of the veteran’s death, and 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 has not remarried. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b)(1). “Spouse” means a person of the opposite sex whose “marriage” to the veteran meets the requirements of 38 C.F.R. § 3.1(j). 38 C.F.R. § 3.50(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 U.S.C. § 103(c); 38 C.F.R. § 3.1(j). The requirement that there must be continuous cohabitation from the date of marriage to the date of death of the veteran will be considered as having been met when the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. Temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation. 38 C.F.R. § 3.53. The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason which did not show an intent on the part of the surviving spouse to desert the veteran, the continuity of the cohabitation will not be considered as having been broken. 38 C.F.R. § 3.53. To the extent that the appellant contends that she and the Veteran were in a common law marriage, the Board recognizes that a common law marriage will be considered a valid marriage for purposes of DIC benefits if it is recognized under the law of the state 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. See 38 C.F.R. §§ 3.1(j); 3.50; 3.205(a)(6). New Hampshire law requires that in order to be married under common law, a couple must be “cohabitating and acknowledging each other as husband and wife, and generally reputed to be such, for [at least] 3 years...until one of them dies.” N.H. Stat. § 457:39. The appellant and the Veteran began living together in 1980, and lived together for many years as a couple. However, in the notice letters to the Veteran, when VA informed the Veteran of changes to his benefits, he was specifically told that he was being paid “as a single veteran with no dependents.” The evidence shows that the Veteran did not attempt to change that status or submit documentation to add a dependent or dependents to his monthly benefits, even though he was informed he could do so and was provided the form that he would need to complete to be paid additional benefits. See April 2004 and September 2006 notification letters. The Veteran indicated on both a September 1991 and a March 2001 application for compensation or pension benefits that he was divorced. When asked how many times he had been married in the September 1991 application, he wrote, “1.” When he was hospitalized at VA in September 1991 for newly-discovered diabetes mellitus, the examiner wrote that the Veteran was “currently divorced.” In a September 1998 VA treatment record, when asked if the Veteran was single, married, divorced, or widowed, the examiner checked, “Single.” An August 1992 VA treatment record shows that the examiner wrote that the Veteran was “single” and “divorced.” In June 1999 and November 1999 VA treatment records, the examiner wrote that the Veteran was divorced. In the June 1999 VA treatment record, the examiner wrote that the appellant and the Veteran “were never married, although they have had an 18[ ]year on and off relationship.” The Veteran described the appellant as his “significant other.” Such facts tend to show, at a minimum, that the Veteran was not holding himself out as being married to the appellant. An April 2002 VA treatment record shows that the Veteran was described as “Single, lives with his significant other.” In July 2002, August 2002 and September 2002, and May 2003, the Veteran was described as, “Single – Lives alone.” An August 2003 VA treatment record shows that the examiner wrote that the Veteran was “a divorced gentleman.” In multiple VA treatment records in 2004 through 2006, it shows that the Veteran was described as single and living with his “girlfriend.” A May 2005 private record also shows that the examiner wrote that the Veteran was single and lived with his girlfriend. A July 2005 VA treatment record shows that the Veteran was described as “divorced.” At a February 2006 VA psychiatric examination, the Veteran reported to the examiner he had been married for two years, had been divorced for 29 years, and was in a relationship with a woman with whom he had been living for 23 years. Thus, the Veteran held himself out as being single and/or divorced and the appellant as his girlfriend or significant other and not his common-law wife. A June 2009 VA treatment record notes that the Veteran reported that he and his common-law wife of 28 years had separated, and that he was living alone at the time. A May 2010 VA treatment record also indicates that the Veteran and the appellant had separated and were no longer living together. A July 2010 VA treatment record shows that the Veteran reported he was married once and had had a 28-year relationship. A December 2012 VA treatment record has “DIVORCED” next to marital status. A November 2013 VA treatment record shows that VA had made multiple attempts to contact “son and ex-wife,” which were unsuccessful. The November 2013 death certificate shows that the Veteran was divorced at the time of his death. Further, on the May 2015 application for DIC, death pension and accrued benefits, the appellant checked “No” to the question “Did you live continuously with the Veteran from the date of marriage to the date of his death?” During the Veteran’s lifetime, when he was married to his spouse, he submitted a VA Form 21-686c, Declaration of Status of Dependents, where he listed his first wife. He did not fill out one of these forms again to add the appellant as a dependent even though he was provided such form and told to submit it to VA to add dependents to his monthly benefit. See April 2004 and September 2006 notification letters. He was told in multiple notification letters that he was being paid as a single Veteran with no dependents. This tends to further show that the Veteran did not acknowledge the appellant as his wife. In reviewing the evidence of record, the preponderance of the evidence is against a finding that the Veteran held himself out as being married to the appellant. Clearly they had been in a long-term relationship, and he consistently referred to her as a significant other or girlfriend but described himself as single and/or divorced and having been married one time, which is evidence that the Veteran held himself out as not being married to the appellant. When he did refer to the appellant as being a common-law wife, he described them as being separated and no longer together. The appellant had written on her application for death benefits that they cohabitated and acknowledged each other as husband and wife since 1980, but the evidence in the file does not support this contention. On the whole, the evidence shows that the Veteran did not hold himself out as being married to the appellant. The Board acknowledges an August 2017 lay statement submitted by the Veteran’s daughter, stating that the Veteran and appellant reconciled in 2011 or 2012 and planned to move to Arizona together, and a June 2017 lay statement by the appellant’s friend of 20 years stating that the appellant and the Veteran separated, but had reconciled in 2012, and an October 2015 lay statement by the Veteran’s son stating that he was living with the Veteran in 2011 and that the Veteran had reconciled with the appellant at that time. However, in the December 2012 VA treatment record, the Veteran was described as divorced and, on the death certificate, the Veteran’s marital status was noted as “divorced,” and no individual was listed under “spouse/civil union partner.” This is consistent with how the Veteran referred to himself since 1991, which included his being single, divorced, married one time, and living with someone, whom he did not describe as his wife. The one time he used “wife” to describe the appellant, he was talking about their no longer being together. Thus, the preponderance of the evidence is against a finding that the Veteran held himself out as married to the appellant wherein he publicly acknowledged her as his wife. Rather, the Veteran indicated on many occasions, as noted above, that he was single or divorced and described the appellant as his girlfriend or significant other. For all the reasons described above, the Board finds that the appellant did not have a common-law marriage to the Veteran, and cannot be granted surviving spouse status. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the appellant is not the Veteran’s surviving spouse, as defined in 38 C.F.R. § 3.50, for the purpose of eligibility for VA death benefits, to include DIC. In reaching this conclusion, the Board is mindful that the Veteran and appellant lived together for many years. However, the evidence shows that the appellant and Veteran had been separated and were not living together at the time of Veteran’s death. The Board has considered the appellant’s assertions that she lived with the Veteran and took care of him when he was ill, as well as the other statements she has presented as to why she is entitled to recognition as his surviving spouse. However, the record does not show that she was married to the Veteran at the time of his death. Thus, the Board finds that the appellant cannot be recognized as the Veteran’s surviving spouse. The Board acknowledges the appellant’s sincere belief that she should be entitled to VA benefits because she lived with the Veteran for many years; however, the facts in this case do not support a finding that the Veteran and the appellant were married at the time of the Veteran’s death. As the appellant may not be recognized as the Veteran’s surviving spouse, the claim on appeal must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Caruso, Associate Counsel