Citation Nr: 18140925 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 13-18 334 DATE: ORDER Entitlement to nonservice-connected death pension benefits is denied. FINDINGS OF FACT 1. The Veteran and the appellant were not married for one year or more at the time of his death and no child has been confirmed to be born of the marriage or at any time prior. 2. For VA purposes the appellant may not be considered the Veteran’s surviving spouse. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran’s surviving spouse for purposes of entitlement to nonservice-connected death pension benefits have not been met. 38 U.S.C. §§ 101, 1102, 1304, 1541; 38 C.F.R. §§ 3.50, 3.54, 3.205, 3.209, 3.210 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1967 to January 1969. He died in March 2012. The appellant is claiming she is the surviving spouse of the Veteran. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 decision from the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. The case is currently under the local jurisdiction of the Waco, Texas, Regional Office (RO). This case was previously before the Board in May 2015, at which time it was remanded for additional development. That development having been completed, this case is once again before the Board. The record shows that the appellant and the Veteran were legally married on June 2011 and the Veteran died less than one year later in March 2012. Death pension is a benefit payable in certain circumstances to a veteran’s surviving spouse because of the veteran’s nonservice-connected death. Basic entitlement exists if (i) the veteran served for ninety days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 U.S.C. §§ 101 (8), 1521(j), 1541(a); 38 C.F.R. §§ 3.3 (b)(4), 3.23(a)(5), (d)(5). In the present case, it must first be determined that the appellant is the surviving spouse for the purpose of awarding such benefits. A “spouse” is a person 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) (2017). In general, the surviving spouse of a qualified veteran is eligible to receive death benefits (including accrued benefits and pension) if the surviving spouse was married to the veteran for one year or more. 38 C.F.R. § 3.54 (a) (2017). In this case, the appellant and the Veteran were married for less than one year. However, the appellant contends that while she and the Veteran did not marry until 2011, they had known each other for approximately 50 years and “our daughter was born in 1963.” Benefits are payable to a surviving spouse married to the Veteran for less than one year prior to his death if a child was born of the marriage, or was born to them before the marriage. 38 C.F.R. § 3.54 (b)(3). The appellant has provided a birth certificate showing that she gave birth to a daughter, L.W., in July 1963. However, there is no designation of the birth father on the certificate. Under the applicable criteria, relationship of a child to a veteran is established by one of the following types of evidence: a copy or abstract of the public record of birth; a copy of a church record of baptism; an affidavit or certified statement of the physician or midwife in attendance at birth; a copy of a Bible or other family record certified to by a notary public or other officer with authority to administer oaths, who should state in what year the Bible or other book in which the record appears was printed, whether the record bears any erasures or other marks of alteration, and whether from the appearance of the writing he believes the entries to have been made at the time purported; affidavits or certified statements of 2 or more persons, preferably disinterested, who will state their ages, showing the name, date, and place of birth of the person whose age or relationship is being established, and that to their knowledge such person is the child of such parents (naming the parents) and stating the source of their knowledge; and other evidence which is adequate to establish the facts in issue, including census records, original baptismal records, hospital records, insurance policies, and school, employment, immigration, or naturalization records. 38 C.F.R. § 3.209. Here, the appellant has not produced any of the aforementioned acceptable pieces of evidence. Rather, she has produced the birth certificate, omitting the father’s name; a copy of the Veteran’s obituary and memorial service program indicating that the person identified as the appellant’s daughter, L.W. was one of the Veteran’s children (although the spelling of the first name of the person on the memorial service program does not match the spelling of the first name of the person identified on the birth certificate); an heirship affidavit, which does not include any mention of L.W.; and a sworn affidavit from L.W. testifying that she believed the Veteran was her biological father for the entirety of her life. However, because the appellant gave birth to L.W. as an illegitimate child, as she has indicated that she was only 15 at the time of birth and the Veteran was only 17 and, thus, they were unable to be legally married at that time, the regulations allow for broader standards in proving a relationship to a veteran. It is noted that, as to the mother of an illegitimate child, proof of birth is all that is required. As to the father, the sufficiency of evidence will be determined in accordance with the facts in the individual case. Proof of such relationship will consist of: (1) an acknowledgment in writing signed by him; or (2) evidence that he has been identified as the child’s father by a judicial decree ordering him to contribute to the child’s support or for other purposes; or (3) any other secondary evidence which reasonably supports a finding of relationship, as determined by an official authorized to approve such findings, such as (i) a copy of the public record of birth or church record of baptism, showing that the veteran was the informant and was named as a parent of the child; or (ii) statements of persons who know that the veteran accepted the child as his; or (iii) information obtained from service department or public records, such as school or welfare agencies, which shows that with his knowledge the veteran was named as the father of the child. 38 C.F.R. § 3.210. Again, the appellant has not produced any of the aforementioned pieces of evidence. Although L.W. has testified that the Veteran led her to believe that he was her father during life, there is no indication that such was the case prior to his death, as her affidavit was only provided after the fact in support of the appellant’s claim for benefits. Although such factors of timing are not an absolute bar to the receipt of benefits, they are to be weighed in terms of the credibility of the allegations made. Here, while the Board does not doubt that L.W. believes that the Veteran was her father, that belief does not establish the matter for purposes of awarding VA benefits. Additionally, although the Veteran’s memorial service and obituary reference L.W. as the Veteran’s daughter, this is no indication of the author of such writings or whether such inclusion of a reference to L.W. as the Veteran’s daughter was determined by an official authorized to approve such findings. Rather, such finding remains unsubstantiated. Under these circumstances, the Board must conclude that the weight of the evidence does not support a finding that L.W. was a child of the deceased veteran for purposes of awarding VA benefits. Therefore, the appellant does not meet the surviving spouse criteria exception for being married to the Veteran for less than one year for VA benefits purposes. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dodd, Counsel