Citation Nr: 18142470 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 14-43 232 DATE: October 15, 2018 ORDER Entitlement to recognition of the Appellant as the surviving spouse of the Veteran for the purpose of VA benefits, including nonservice-connected death pension benefits, is denied. FINDINGS OF FACT 1. The Appellant and the Veteran married in May 1975 and were legally divorced in October 1984; the Veteran died in May 2013. 2. Following the divorce of the Veteran and the Appellant in October 1984, the Veteran and the Appellant did not thereafter remarry each other, or otherwise hold themselves out as husband and wife. CONCLUSION OF LAW The Appellant may not be recognized as the surviving spouse of the Veteran for the purpose of entitlement to VA benefits, including nonservice-connected death pension benefits. 38 U.S.C. §§ 101, 103, 5107 (2012); 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.102 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from March 1972 to April 1976. He died in May 2013. The Appellant is his former spouse. The RO styled the issue on appeal as entitlement to nonservice-connected death pension benefits, but in actuality based the denial on the determination that the appellant is not the Veteran's surviving spouse for VA purposes. The Board has accordingly recharacterized the issue on appeal to more accurately reflect the legal matter before the Board. The Appellant asserts that she should be recognized as the Veteran's surviving spouse and granted entitlement to nonservice-connected death pension benefits or Dependency and Indemnity Compensation (DIC) benefits. She claims that she never remarried following her divorce from the Veteran. When a veteran dies, his or her surviving spouse may be eligible to VA death benefits, to include DIC benefits, death compensation, and death pension. See 38 U.S.C. §§ 1121, 1310, 1541 (2012); 38 C.F.R. § 3.50(a) (2017). Consequently, "surviving spouse" status is a threshold requirement for both DIC and death pension benefits. 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). The validity of a marriage is determined based upon the law of the jurisdiction where the parties resided at the time of marriage or when the rights to benefits accrued. 38 C.F.R. § 3.1(j) (2017). A surviving spouse for VA purposes is defined as a person whose marriage to a 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 fault of the spouse; and (2) has not remarried or has not since the death of the veteran lived with another person and held himself/herself out openly to the public to be the spouse of such other person. See 38 C.F.R. §§ 3.50(b), 3.53 (2017). 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. § 103(c) (2012); 38 C.F.R. § 3.1(j). A valid marriage may be established by various types of documentary evidence together with the claimant's certified statement concerning the date, place and circumstances of dissolution of any prior marriage, provided that such facts, if they were to be corroborated by the evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205(a). Proof of divorce or termination of a prior marriage can be established by a certified copy or certified abstract of final decree of divorce or annulment specifically reciting the effects of the decree. 38 C.F.R. § 3.205(b). The validity of a divorce decree, regular on its face, will be questioned by VA only when such validity is put in issue by a party thereto or a person whose interest in a claim for VA benefits would be affected thereby. 38 C.F.R. § 3.206. The facts in this case are not in dispute. The evidence of record shows that the appellant and the Veteran divorced in October 1984 and that she was not married to him at the time of his death in 2013. The record includes an official divorce decree. The Appellant provided lay evidence that she divorced the Veteran as a result of drug use. See the May 2014 statement from the Veteran’s brother. The law clearly requires that a surviving spouse be married to the Veteran at the time of his death in order to be considered the surviving spouse. As the Appellant was not married to the Veteran at the time of his death, the Appellant is not the Veteran's surviving spouse for the purpose of establishing entitlement to certain VA benefits. 38 C.F.R. §§ 3.1(j), 3.50. Although there are exceptions to the requirement that an appellant have lived continuously with a veteran from the time of the marriage to the time of that veteran's death, these exceptions only apply in instances where a veteran and an appellant were still legally married at the time of the veteran's death. See 38 C.F.R. § 3.53 (2017). There is no exception to the requirement that an appellant have been married to a veteran at the time of the veteran's death in order to be considered a surviving spouse. Unfortunately, the exception cited by the appellant applies only to couples who are separated and therefore do not cohabitate. A surviving spouse is defined by law as a person who was legally married to the veteran at the time of the veteran's death. The Appellant and the Veteran were divorced, not separated. This bars her from eligibility for status as the Veteran's surviving spouse, regardless of the cause of the divorce. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). Thus, under the general definition of a surviving spouse, once the claimant became divorced from the Veteran, she no longer can meet the criteria to achieve the status of a surviving spouse of the Veteran for purposes of VA benefits. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). The divorce was recognized by the state of Alabama. No legal exception is applicable that would allow the appellant to receive benefits. She does not assert, nor does the evidence show, that that she and the Veteran had, after the divorce, held themselves out as husband and wife. The Board notes that Alabama, the state of residence of the Appellant, recognizes common law marriage. In Alabama, the elements of common law marriage are (1) capacity, (2) present agreement or mutual consent to enter into the marriage relationship, (3) public recognition of the existence of the marriage, and (4) cohabitation or mutual assumption openly of marital duties and obligations. See Creel v. Creel, 763 So.2d 943, 946 (Ala. 2000); Adams v. Boan, 559 So.2d 1084, 1086 (Ala. 1990). It is noted that under Alabama law, adjudicators are to closely scrutinize claims of common law marriage and require clear and convincing proof thereof. Gray v. Bush, 835 So.2d 192 (Ala. Civ. App. 2001). In cases involving alleged common-law marriages, there must be proof of a common-law marriage for the purpose of receiving VA benefits. Supporting evidence of common-law marriage should include affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parties held themselves out as husband and wife, and whether they were generally accepted as such in the communities in which they lived. 38 C.F.R. § 3.205(a). The evidence does not show and the Appellant does not allege that she and the Veteran agreed to enter a marital relationship and cohabitated after their divorce. There is no evidence to support a finding of a valid common law marriage under Alabama law. (Continued on the next page)   The Board is deeply sympathetic to the Appellant. However, where the law and not the evidence is dispositive, the appeal must be denied for failure to state a claim upon which relief may be granted. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board therefore has no alternative but to deny the Appellant's claim as she does not meet the legal criteria to establish status as the Veteran's surviving spouse for purposes of VA benefits. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S.Kelly, Counsel