Citation Nr: 18150787 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-33 523 DATE: November 16, 2018 ORDER Entitlement to recognition as a surviving spouse of the deceased Veteran for the purpose of entitlement to dependency and indemnity compensation (DIC) benefits is denied. FINDINGS OF FACT 1. In July 1975, the Veteran married D.G. (initials used to protect privacy) in California. 2. In October 2011, the Veteran and the appellant filed a marriage certificate and underwent a marriage ceremony in Arizona; however, as the Veteran remained married to D.G. at that time, the October 2011 marriage legally was invalid from the onset (void ab initio). 3. The Veteran died in August 2015, while legally still married to D.G. 4. In a January 2016 administrative decision, the VA Regional Office (RO) at the St. Paul Minnesota Pension Management Center, granted DIC benefits to D.G., and denied DIC benefits to appellant, based on documents supplied by D.G., indicating that she was married to the Veteran at the time of his death. 5. D.G. is the surviving spouse of the Veteran. 6. The appellant was not the surviving spouse of the deceased Veteran for the purpose of entitlement to DIC benefits, because she was never married legally to the Veteran and the actual survival spouse filed a claim for benefits. CONCLUSION OF LAW The criteria for recognition as a surviving spouse of the deceased Veteran for the purpose of entitlement to DIC benefits have not been met. 38 U.S.C. §§ 101, 103 (2012); 38 C.F.R. §§ 3.1, 3.5, 3.50, 3.52, 3.53 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from May 1966 to May 1969, to include service in the Republic of Vietnam. Regrettably, the Veteran died in August 2015. The Veteran’s decorations for his active service include a Combat Infantryman Badge. The appellant seeks recognition as his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2016 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) at the St. Paul Minnesota Pension Maintenance Center. Entitlement to Recognition as the Surviving Spouse of the Veteran for VA Benefit Purposes The matter at hand stems from a January 2016 administrative determination by the RO that the appellant was not entitled to VA death benefits. The RO denied the appellant’s claim based on a finding that she and the Veteran did not have a valid marriage at the time of his death, and that she was not his surviving spouse. To be entitled to VA benefits as a “surviving spouse” of a veteran, the applicant must have been the veteran’s spouse at the time of the veteran’s death and lived continuously with the veteran from the date of their marriage to the date of his or her death, except where there was a separation due to the misconduct of, or procured by the veteran without the fault of the spouse. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). The term “spouse” is defined as a person of the opposite sex whose marriage to the veteran is 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 C.F.R. §§ 3.1(j), 3.50(a). Certain VA death benefits may be awarded to a Veteran’s “surviving spouse.” 38 U.S.C. § 1310 (permitting DIC benefits if the veteran died from a service-connected or compensable disability). A surviving spouse is a person (1) validly married to the veteran at the time of the Veteran’s death, (2) “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 (3) “who has not remarried or... lived with another person and held himself or herself out openly to the public to be the spouse of such other person.” C.F.R. § 3.50(b). Under VA regulations, a “marriage” is “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 C.F.R. § 3.1(j); also 38 U.S.C. § 103(c) (1982); Burden v. Shinseki, 25 Vet. App. 178, 182 (2012). Where an attempted marriage is invalid as a result of a legal impediment that was unknown to the claimant, the attempted marriage may be deemed valid if: (a) The marriage occurred 1 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 (see § 3.54(d)), and (b) The claimant entered into the marriage without knowledge of the impediment, and (c) The claimant cohabited with the veteran continuously from the date of marriage to the date of his or her death as outlined in § 3.53, and (d) 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. Review of the record shows that the Veteran and D.G. were married on July [redacted], 1975 in San Diego County, California. Subsequently the appellant submitted a marriage certificate between herself and the Veteran from Mohave County, Arizona, dated October [redacted], 2011. An August 2006 VA treatment record indicates the Veteran reported he had been married and divorced three times. He stated that his second marriage lasted for 5 years and he was “not sure if he is still married to his second wife.” An October 2007 VA treatment record indicates the Veteran reported he had been married and divorced two times, and that he was currently living with his girlfriend. An August 2011 VA treatment record indicates that the Veteran reported he was separated from his wife of 25 years. In a VA Form 21-0820 received from the Veteran in September 2014, the Veteran stated he submitted documentation to verify he is married to his spouse, the appellant. The Veteran stated he was never married to D.G., and that he would submit verification of his marriage license to the appellant. In a VA Form 21-686c received from the Veteran in September 2014, the Veteran claimed the appellant as his spouse, and indicated they had been married in Flagstaff, Arizona, on October [redacted], 2011. In September 2014, VA received an Arizona marriage license issued in the County of Mohave for the Veteran and the appellant. The license indicates the Veteran and appellant entered into marriage on October [redacted], 2011, in Flagstaff, Arizona. September 2014 correspondence received from the Veteran and appellant indicates the Veteran stated he was married “10/10 and never received spousal benefits.” In a VA Form 21-4138 received from the Veteran in October 2014, the Veteran stated he received VA correspondence proposing to remove D.G. from his award as his wife. He stated that he was never married to D.G., and never submitted information to VA stating that he was married to D.G. Further, the Veteran reported he did marry the appellant and submitted the marriage certificate to VA in October 2011. He stated he could not submit evidence to show termination of marriage to D.G. because he was never married to D.G. He stated that the “only time and person I have been married to is my current wife,” the appellant. In October 2015, the appellant filed her claim for DIC benefits with VA. With her claim, the appellant submitted a State of Arizona death certificate for the Veteran certified in August 2015. The appellant was listed as the spouse. In November 2015, D.G. filed her claim for DIC benefits with VA. With her claim, D.G. submitted a State of Arizona amended death certificate for the Veteran certified in August 2015. D.G. was listed as the spouse. Further, with her claim, D.G. submitted a State of California marriage certificate for the Veteran and D.G. from July 1975. Of record is a January 2016 statement from D.G. In that statement, D.G. Stated she was married to the Veteran in 1975 and lived continuously until 2002 or 2003. She reported she moved to Arizona and intended on cohabitating with the Veteran once she retired. She stated that every year they would vacation together, lasting between one week to one month in duration. She stated in 2006 she moved to take care of her elderly father, and that the Veteran visited her in California. She stated that for their 40th wedding anniversary, the Veteran and her spent time together and that he surprised her with a new wedding ring. D.G. reported that she was aware of extramarital affairs, one of which produced children. Moreover, D.G. reported that the appellant had contacted her regarding the marriage between D.G. and the Veteran. D.G. stated she notified the appellant that she was still married to the Veteran. In March 2016, the appellant submitted handwritten correspondence between the Veteran and herself. Included was a handwritten will signed by the Veteran indicating he wished his property to be split evenly between his 5 children and the appellant. Moreover, the appellant asserted in her March 2016 Notice of Disagreement (NOD), that she had been with the Veteran for 13 years prior to his death, and that they married in 2011. She stated that the Veteran’s daughter, J., stated that her mother was “still his wife an your [sic] not married to my father.” She stated that she believed she was married to the Veteran. Of record is a June 2016 letter from the Veteran’s private treatment provider, J.S., CPO, CPed. In that letter, J.S. indicated she treated the Veteran from November 2011 to June 2014. During those appointments, the Veteran introduced the appellant as his wife. Pertinent evidence of record includes lay statements in support of both D.G. and the appellant. The lay statements indicate that the Veteran held out to the public both D.G. and the appellant to be his wife at various times. The appellant’s argument as to why she should be considered the Veteran’s legal surviving spouse is essentially that her marriage to the Veteran was valid. In making this argument, appellant consistently reports a date of October [redacted], 2011, as the date on which the Veteran and the appellant got married, and has attached a marriage certificate in this regard. Moreover, the appellant asserts she cohabitated with the Veteran at the time of his death, and was not aware of any impediment to the validity of her marriage. Arizona law prohibits a marriage entered into prior to the dissolution of an earlier marriage of one of the parties. Code of Arizona § 13-3606 (classifying bigamy as a felony). Further, Arizona law provides that bigamy is grounds for annulment of marriages in Arizona, and are considered legally invalid from their inception. Code of Arizona Title 25, Chapter 3, Article 1. A review of the record does not show that the marriage between the Veteran and D.G. had ended or dissolved on any date. Moreover, a review of the record shows that the marriage between the Veteran and D.G. predates the appellant’s marriage to the Veteran. Therefore, the Arizona marriage certificate submitted was not proof of a marriage between the appellant and the Veteran. As the appellant’s marriage was invalid under Arizona law, in the January 2016 administrative decision, VA could still have found that the appellant’s marriage to the Veteran was valid for DIC purposes if the evidence of record met the criteria of 38 C.F.R. § 3.52. Under that regulation, if a claimant’s marriage is deemed legally invalid due to some legal impediment that was unknown to the claimant, VA may deem such marriage to be valid if four criteria are met. The evidence of record demonstrates that the appellant met three out of the four of the required criteria. In this regard, the appellant was married to the Veteran for more than one year prior to his death. Additionally, the appellant had provided sufficient evidence showing that she had entered into her marriage without knowing of the legal impediment, specifically the Veteran’s ongoing marriage to D.G. Also, the appellant cohabited with the Veteran continuously from the date of their marriage to the date of his death. However, in order for an otherwise illegal marriage to be deemed valid under 38 C.F.R. § 3.52, a legal surviving spouse who has been found to be entitled to death benefits must not have filed a claim for benefits. In November 2015, D.G. had submitted a valid marriage certificate, predating that of the appellant’s marriage to the Veteran; and supplied documentary evidence and statements regarding her separate living circumstances from the Veteran. In sum, the Board finds that the appellant is not entitled to recognition as the Veteran’s surviving spouse for the purpose of entitlement to DIC benefits. Although the appellant entered into a marriage with the Veteran in Arizona in October 2011, their marriage was invalid under Arizona law from the beginning, because the Veteran then was married to D.G. Therefore, the appellant could not be considered the surviving spouse under 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). Although the appellant was unaware of any legal impediments to her marriage while the Veteran was alive, VA cannot deem her marriage to be valid under 38 C.F.R. § 3.52, because a legal surviving spouse who has been found entitled to gratuitous death benefits filed a claim for benefits. The Board sympathizes with the appellant and has carefully considered her arguments in this matter. However, in all instances the Board is bound by the law. Accordingly, the Veteran is not entitled to recognition as the surviving spouse for the purpose of entitlement to DIC benefits. L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel