Citation Nr: 18147057 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-33 718 DATE: November 2, 2018 ORDER Recognition as the Veteran’s surviving spouse is denied. FINDINGS OF FACT 1. The Appellant and the Veteran were married in July 1970. 2. The Appellant and the Veteran were divorced in April 1982. 3. The Veteran died December 2014. CONCLUSION OF LAW The criteria for recognition as the surviving spouse of the Veteran for the purpose of VA death benefits have not been met. 38 U.S.C. §§ 101 (3), 103; 38 C.F.R. §§ 3.1 (j), 3.50, 3.53, 3.55. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1964 to June 1984. The Veteran died in December 2014. The Appellant seeks entitlement to VA benefits as his surviving spouse. In March 2016, the Appellant raised a motion to have her claim advanced on the docket due to financial hardship, and included supporting documentation. Such motion is granted at this time. 38 C.F.R. § 20.900. 1. Recognition as the surviving spouse of the Veteran. A review of the Appellant’s written testimony shows that she asserts that she should be considered to be a surviving spouse of the Veteran. She asserts that although they were divorced, that she was abused by the Veteran and that, “My husband forced me to sign divorce papers because he knew I was afraid of him. He used my fear. When we did get a divorce he still forced himself on me yet creating another child.” See Appellant’s statements, dated in May and July 2015. In her notice of disagreement, dated in December 2015, she stated, “We were together for over 50 years.” Governing law provides that Dependency and Indemnity Compensation (DIC) benefits and non-service connected death pension benefits may be paid to the surviving spouse of a veteran if certain requirements are met. 38 U.S.C. §§ 1304, 1310, 1311, 1318, 1541. “Marriage” means a marriage 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). A “surviving spouse” is defined as 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 who has not remarried or (in cases not involving remarriage) has not since the death of the veteran lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C. § 101 (3); 38 C.F.R. § 3.50. Regulations allow VA to accept an otherwise invalid attempt at marriage as valid if the marriage occurred more than one year prior to the veteran’s death or if a child resulted from the marriage; the claimant was unaware of the legal impediment to the marriage; the claimant and veteran cohabitated continuously from the date of marriage until death (except for periods where separation was due to the misconduct of the veteran); and there is no claim by a legal surviving spouse. 38 C.F.R. § 3.52. 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 Court has held that one claiming to be the spouse of a veteran had the burden to come forward with preponderating evidence of a valid marriage under the laws of the appropriate jurisdiction. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). A marriage certificate, dated in July 1970, shows that the Veteran and the Appellant were married in Portsmouth, Virginia. A decree of divorce, dated in April 1982, shows that the Appellant and the Veteran were divorced. A court order, dated in May 2007, shows that the Veteran was directed to continue to pay spousal support to the Appellant. The Board finds that the evidence is insufficient to show that the Appellant was married to the Veteran at the time of his death. The evidence indicates that the Appellant and the Veteran were divorced in April 1982. The Appellant has repeatedly acknowledged that she and the Veteran were divorced. See e.g., Appellant’s statements, dated in May and July 2015; Appellant’s claim (VA Form 21-534) dated in September 2017. The Board has considered the Appellant’s arguments that she was abused by the Veteran, and that she was forced to agree to the divorce. Unfortunately, there are no mitigating circumstances to establish the Appellant’s status as the surviving spouse of the Veteran once, as in this case, the marriage has been legally terminated (here, by divorce). Mitigating circumstances apply only in cases where a claimant, although separated, remained the legal spouse of a veteran at the time of his death, and do not apply to any question of fault where a claimant and a veteran were legally divorced, and not just separated, prior to the Veteran’s death. See 38 C.F.R. § 3.50 (b)(1). Accordingly, the appellant may not be recognized as the Veteran’s surviving spouse based on their 1970 marriage, regardless of who may have been at fault in any circumstances which led to their 1982 divorce. Finally, the Appellant has stated that she and the Veteran (whom she has referred to as her “husband”) “were together for over 50 years,” and that she had two children with the Veteran, who were born in 1972 (a daughter) and in about 1984 (i.e., a son noted to be 31 years old). See Appellant’s notice of disagreement, dated in December 2015. However, she has not specifically asserted that she and the Veteran cohabitated continuously following the divorce, that they held themselves out as husband and wife, or that she and the Veteran entered into a common law marriage following their divorce, nor is there any evidence to support such a conclusion. See 38 C.F.R. §§ 3.52, 3.205; see also May 2007 court order for continuance of spousal support. As the Appellant is not shown to have been married to the Veteran at the time of his death, the Board cannot find that the Appellant was the legal spouse of the Veteran at the time of his death. In summary, the Board finds that basic eligibility to receive VA benefits as the Veteran’s surviving spouse is not shown. The Court has held that in cases such as this, where the law is dispositive, the claim should be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). To qualify for benefits as a surviving spouse, the claimant must have been the Veteran’s spouse on the date of his death. The law does not provide any relevant exception to the requirement. As the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The claim must be denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S.E., Counsel