Citation Nr: 18144151 Decision Date: 10/24/18 Archive Date: 10/23/18 DOCKET NO. 15-08 864A DATE: October 24, 2018 ORDER Entitlement to recognition of the appellant as the surviving spouse of the Veteran for purposes of establishing entitlement to dependency and indemnity compensation (DIC) and/or death pension benefits is denied. FINDING OF FACT The Veteran and the appellant were married from June [redacted], 1986 to May [redacted], 2009; they divorced on May [redacted], 2009. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran’s surviving spouse for purposes of establishing eligibility for DIC and death pension are not met. 38 U.S.C. §§ 101, 103, 1102, 1311, 5121 (2012); 38 C.F.R. §§ 3.50, 3.54, 3.55, 3.1000 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant was previously married to the Veteran who served on active duty from April 1970 to October 1972. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2018. A transcript of the hearing is associated with the electronic claims file. Death Pension and DIC Benefits The appellant seeks recognition as the Veteran’s surviving spouse for purposes of establishing eligibility for VA death benefits. The threshold question that must be addressed in any claim for VA benefits is whether the person seeking the benefit is a proper claimant for the benefit sought. If the appellant is not established as a proper claimant, the claim can proceed no further. The appellant has the burden to establish her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). DIC and death pension benefits may be paid to the surviving spouse of a Veteran in certain circumstances. 38 U.S.C. §§ 1310, 1541(a). Except as provided in 38 C.F.R. § 3.52, the term “surviving spouse” means 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 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 the fault of the spouse; and (2) except as provided in 38 C.F.R. § 3.55, has not remarried or has not since the death of the Veteran and, after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50(b). Under 38 C.F.R. § 3.54(a), death pension may be paid to a surviving spouse who was married to the Veteran after his separation from service and if they were married (1) for one year or more prior to the Veteran’s death, or (2) for any period of time if a child was born of the marriage or was born to them before the marriage, or (3) prior to February 1, 1965 for Korean War veterans. Under 38 C.F.R. § 3.54 (b) and (c), a surviving spouse may qualify for VA death compensation and DIC benefits purposes if she married the Veteran after his separation from service and they were married (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, or, (2) for one year or more, or, (3) for any period of time if a child was born of the marriage or before the marriage. 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). 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); 38 C.F.R. § 3.1(j). Where an attempted marriage of a claimant to the Veteran is invalid by reason of a legal impediment, the marriage will nevertheless be deemed valid if: (1) the marriage occurred one year or more before the Veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage, and (2) the claimant entered into the marriage without knowledge of the impediment, and (3) the claimant cohabited with the Veteran continuously from the date of marriage to the date of his or her death, and (4) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the Veteran’s death. 38 C.F.R. § 3.52. VA’s Office of General Counsel has interpreted “legal impediment” to include the requirement of a marriage ceremony by a jurisdiction which does not recognize common-law marriages. VAOPGCPREC 58-91. Entitlement to recognition of the appellant as the surviving spouse of the Veteran for purposes of establishing entitlement to DIC and/or death pension benefits. The facts of this case are not in dispute. The appellant and the Veteran were married on June [redacted], 1986 and divorced on May [redacted], 2009. The Veteran died on May [redacted], 2011. At the time of the Veteran’s death, he and the appellant were not married. Accordingly, the appellant cannot be found to be the Veteran’s surviving spouse for purposes of VA benefits. In her application and during her hearing, the appellant argued that although she and the Veteran were formally divorced, he never left the marital home and they continued to hold themselves out as a married couple until his death. Nevertheless, the first criterion for establishing spousal eligibility for the purposes of VA death benefits is a valid marriage on the date of death. For this criterion, state law controls. The Veteran and the appellant lived in Pennsylvania throughout their marriage, at the time of their divorce, and following their divorce. The state of Pennsylvania abolished common law marriages on January 1, 2005, although the statute is clear that any common law marriages entered into before January 1, 2005 would still be considered valid. P.L. 954, No. 144, Title 23, §1103, Nov. 23, 2004. Here, the Veteran and the appellant were still legally married through May [redacted], 2009, therefore, a common law marriage could not have been established prior to January 1, 2005. The appellant also provided several supporting statements regarding her marriage from family members and friends. Each of these statements corroborate the appellant’s explanation that although she and the Veteran were divorced, he never left the marital home and they continued to hold themselves out as married. Unfortunately, these statements cannot overcome the fact that in June 2009, the Veteran filed a copy of his divorce decree with the VA and requested that the appellant be removed from his VA award. Since the appellant and the Veteran were not married at the time of the Veteran’s death, the appellant cannot be recognized as a surviving spouse for purposes of establishing entitlement to DIC and/or death pension benefits. Accordingly, recognition of the appellant as the Veteran’s surviving spouse for VA death benefits purposes is denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Ruiz, Associate Counsel