Citation Nr: 18153677 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 08-39 706 DATE: November 28, 2018 ORDER The appellant may not be recognized as the surviving spouse of the Veteran, and she is not entitled to pursue a claim for disability and indemnity compensation benefits on behalf of her adult children. The appeal as to whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to compensation pursuant to 38 U.S.C. § 1151 for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. At the time of the Veteran’s death, the state of Illinois does not recognize common law marriages, and a marital relationship is not deemed valid for VA purposes. 2. The appellant is not recognized as the Veteran’s surviving spouse for VA benefit purposes. 3. The appellant lacks standing to pursue a claim on behalf of her adult children. CONCLUSIONS OF LAW 1. The criteria for recognition as the Veteran’s surviving spouse for the purpose of establishing entitlement to VA benefits have not been met. 38 U.S.C. §§ 101, 103, 1102, 1310, 1541 (2012); 38 C.F.R. §§ 3.1, 3.50, 3.53, 3.54, 3.205 (2017). 2. The appellant is not an eligible claimant for purposes of pursuing a claim for DIC benefits for the Veteran’s adult children. 38 U.S.C. §§ 101, 1310, 1312, 1313, 1314, 1542 (2012); 38 C.F.R. §§ 3.1, 3.5, 3.57, 3.152, 3.155, 3.210, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1948 to April 1952. He died in March 1983. The appellant has contended that she is the surviving spouse of the Veteran and the mother of his surviving children. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2006 rating decision. The appellant testified at a hearing before the undersigned Veterans Law Judge in February 2011. A transcript of that proceeding is associated with the record. In June 2011 and June 2017, the Board remanded the case for further development and adjudication of the threshold matters of whether the appellant is entitled to recognition as the surviving spouse of the Veteran and whether she is entitled to seek benefits on behalf of his surviving children. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis As discussed below, the resolution of the appeal is wholly dependent on the application of the laws and regulations related to the eligibility criteria for DIC, including recognition as a surviving spouse as defined for VA purposes. Therefore, no further development under the duty to notify and assist is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that, where the law is dispositive, the claim must be denied due to a lack of legal merit). Dependency and indemnity compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from service-connected disability. 38 U.S.C. § 131; 38 C.F.R. § 3.5(a). When there is no surviving spouse, VA death benefits may be paid to eligible children. 38 U.S.C. § 1313(a). Consequently, status as a surviving spouse or surviving child of the Veteran is a threshold requirement for DIC benefits. Under the provisions of 38 U.S.C. § 1151 compensation is payable to the surviving spouse of a veteran whose death was caused by hospital care or medical or surgical treatment provided by a VA employee or in a VA facility in the same manner as if such additional disability were service-connected if the additional disability was not the result of willful misconduct and was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing that treatment, or an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1)(A), (B); 38 C.F.R. § 3.361(a)-(d). The term “surviving spouse” is defined in pertinent part as a person who (1) was the lawful spouse of a veteran at the time of the Veteran’s death; and (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 fault of the spouse; and (3) who has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex 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. In order to be a surviving spouse, the appellant’s marriage must be 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); Burden v. Shinseki, 727 F.3d 1161, 1164 (Fed. Cir. 2013) (Under 38 U.S.C. § 103(c), “state law, including state law evidentiary burdens, must be applied in determining the validity of a purported common law marriage.”). In this case, the appellant has reported that the parties resided in the State of Illinois. See, e.g., January 2016 statement of marital relationship. She has not alleged that the parties lived as husband and wife in any other jurisdiction. The State of Illinois does not recognize common law marriages contracted in the state after June 30, 1905. See 750 Ill. Comp. Stat. Ann. 5/214 (LexisNexis 2018). Therefore, a common law marriage cannot be established under Illinois state law. Nevertheless, VA may still deem a marriage as valid for VA purposes. VA’s General Counsel has held that lack of residence in a jurisdiction recognizing a common law marriage is not necessarily a bar to establishment of a common law marriage for the surviving spouse. VAOPGCPREC 58-91 (June 17, 1991), published at 56 Fed. Reg. 50,151 (1991). This is because under 38 C.F.R. § 3.52, the common law marriage could be “deemed valid” on the theory that the surviving spouse could have entered into the purported common law marriage without knowledge of the fact that there was an impediment to the marriage. Colon v. Brown, 9 Vet. App. 104 (1996). Where an attempted marriage of a claimant to the veteran was invalid by reason of a legal impediment, the marriage will nevertheless be deemed valid if: (a) the marriage occurred 1 year or more before the veteran died; (b) the claimant entered into the marriage without knowledge of the impediment; (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 U.S.C. § 103 (a); 38 C.F.R. § 3.52. The requirement of a formal marriage ceremony by a jurisdiction that does not recognize common law marriage constitutes a legal impediment to that marriage for purposes of 38 U.S.C. § 103(a) and 38 C.F.R. § 3.52. See Lamour v. Peake, 544 F.3d 1317, 1322 (Fed. Cir. 2008) (citing VAOPGCPREC 58-91). The determination as to a claimant’s knowledge of a legal impediment “is viewed in terms of what the appellant’s state of mind was at the time that the invalid marriage was contracted.” Lamour, 544 F.3d at 1323 (internal citation and quotations omitted). Where a surviving spouse has submitted proof of marriage in accordance with 38 C.F.R. § 3.205(a) and also meets the requirements of 38 C.F.R. § 3.52 (deemed valid marriage), VA will accept the appellant’s signed statement that he or she had no knowledge of an impediment to the marriage to the veteran, in the absence of information to the contrary, as proof of that fact. 38 C.F.R. § 3.205(c). For purposes of determining eligibility for DIC and death benefits, the term “child” is defined as an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the Veteran’s household or was a member of the Veteran’s household at the time of the Veteran’s death, or an illegitimate child and who is (i) under the age of 18 years; (ii) before the age of 18 years became permanently incapable of self-support; or (iii) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101 (4)(A); 38 C.F.R. §§ 3.57, 3.356. Since March 24, 2015, VA defines a claim as a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administrated by VA submitted on an application form prescribed by the Secretary. 38 C.F.R. § 3.1(p). VA regulations further provide that a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not of full age or capacity, who indicates a desire to file for benefits under the laws administered by VA, by a communication or action, to include an electronic mail that is transmitted through VA’s electronic portal or otherwise, does not meet the standard of a complete claim is considered a request for an application form for benefits under § 3.150(a) (2015). Upon receipt of such a communication or action, the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). Prior to March 24, 2015, any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. 38 C.F.R. § 3.155(a). An informal claim must identify the benefit sought. In this case, the appellant seeks recognition as the surviving spouse of the Veteran for purposes of entitlement to death and indemnity compensation benefits under the provisions of 38 U.S.C. § 1151. Alternatively, she has contended that she has standing to pursue such a claim on the behalf of her adult children T.S. and V.S. (initials used to protect privacy). Historically, in a March 1981 claim, the Veteran reported that he was never married and had two children, T.S. and V.S. He listed the appellant’s name as his nearest relative, but indicated that her relationship was “friend.” Thereafter, in a May 1981 claim, the Veteran again reported that that he was never married. In a June 1982 income-net worth statement, the Veteran claimed benefits for his children T.S. and V.S. and listed the appellant as the person having custody of his children. However, the Veteran noted that he was never married and listed a different address for the appellant after crossing out the word “same.” A June 1982 VA hospital summary noted that the Veteran lived alone and was divorced with two children In a December 1982 declaration of marital status, the Veteran reported that he was never married. He stated that his children were in the custody of the appellant and listed a separate address for the appellant. The Veteran died in March 1983, and his death certificate indicated that he was never married. In October 1991, the appellant submitted an application for dependency and indemnity compensation or death pension benefits, including compensation under 38 U.S.C. § 1151 for negligence on VA’s part in furnishing surgical treatment that was the proximate cause of the Veteran’s death. At the time of the application, the appellant did not indicate that she was the surviving spouse of the Veteran; rather, she stated that she was the custodian of the Veteran’s illegitimate children, T.S. and V.S. The Board notes that the children were 17 years old at the time of the claim. In a November 1991 rating decision, the RO denied entitlement to service connection for the cause of the Veteran’s death, to include compensation under 38 U.S.C. § 351 [renumbered 1991 38 U.S.C. § 1151]. The December 1991 notice letter for the rating decision acknowledged that the appellant was the custodian of the Veteran’s children. It was also noted that the appellant’s income limit exceeded the pension income limit for a child of the Veteran and that a claim for accrued benefits was denied. The appellant did not file a notice of disagreement or submit new and material evidence within one year of receiving notice of the November 1991 rating decision. Therefore, the November 1991 rating decision became final. 38 U.S.C. § 7105 (1991); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1991). In October 2006, the appellant sought to reopen the claim for DIC benefits. At that time, she indicated that she was the common law wife of the Veteran and that she lived continuously with him from the date of their marriage until his death. The appellant also stated that she was filing an application on behalf of the Veteran’s children because she found the RO’s determination that the children could not receive VA benefits to be in error. The Board notes that the appellant’s children were 32 years old at the time of the October 2006 application. In November 2006, the RO denied the claim for DIC, death pension, and accrued benefits. In so doing, the RO noted that these benefits were previously denied in a final rating decision. The RO further stated that the evidence at the time of the December 1991 rating decision showed that the appellant’s family income was excessive for VA purposes. The RO also stated that it could not consider payments for the appellant because she was not legally married to the Veteran. Moreover, payments were not available to her children who were currently over the age of 23. In a September 2007 correspondence, the appellant acknowledged that she received a copy of the December 1991 letter that notifying her T.S. and V.S. were denied DIC benefits. The appellant asserted that she did not seek benefits for the cause of the Veterans death on behalf of T.S. and V.S, but rather previously filed a claim for benefits that the Veteran applied for on behalf of his children. In October 2008, the RO notified the appellant that her claim for DIC benefits was previously denied in a final rating decision and that new and material evidence was required to reopen the claim. In November 2008, the appellant once again raised the issue of entitlement to compensation under the provisions of 38 U.S.C. § 1151. Specifically, she asserted that the Veteran’s death was due to VA negligence during his surgery for adenocarcinoma of the lung. In a December 2008 statement of the case, the RO determined that new and material evidence had not been received to reopen a claim for compensation for the cause of the Veteran’s death under 38 U.S.C. § 1151. The RO specifically noted that the appellant would receive separate information regarding the status of benefits for T.S. and V.S. In February 2009, the RO stated that it denied entitlement to accrued benefits for T.S. and V.S. based on their relationship to the Veteran. In so doing, the RO stated that it could not authorize payments for accrued benefits due to the fact that the laws effect at the time of the Veteran’s original claim for benefits for his dependents were different and certain documents had to be of record in VA custody at the time of the Veteran’s death. In March 2009, the appellant submitted a notice of disagreement with the February 2009 determination. In so doing, she asserted that the Veteran did submit his daughter’s original birth certificates prior to his death. Thereafter, in a July 2009 statement of the case, the RO denied entitlement to accrued benefits for the dependents T.S. and V.S. for increased pension not paid during Veteran’s lifetime. During a February 2011 Board hearing, the appellant denied that she was married to the Veteran, but stated that she cohabitated with the Veteran from approximately 1968 until his death. She further stated that she had two children with the Veteran. In a December 2011 statement, the appellant reported that she was pursuing a claim for entitlement to compensation as the mother of the Veteran’s children. In so doing, she acknowledged that neither of her children were disabled, but she wished to file a claim on their behalf for retroactive benefits from the date of the Veteran’s death until the they turned 18 years old. She also asserted that her children were 9 years old at the time of the Veteran’s death. In a January 2016 statement of marital relationship, the appellant reported that the parties began living as husband and wife in February 1968. She indicated that she never began using the Veteran’s name and provided no response as to whether the parties lived together continuously. In addition, the appellant reported that she married J.S. in December 1962 prior to her purported common law marriage to the Veteran. She stated that her marriage to J.S. ended in December 1963 by reason of abandonment. In a January 2016 statement regarding marriage, P.B. reported that she had known the Veteran for 13 years. She indicated that the Veteran and the appellant were generally known as husband and wife; that neither the Veteran or the appellant ever denied the marriage; and that she considered the Veteran and the appellant to be husband and wife. However, P.B. stated that she never heard the Veteran or the appellant refer to each other as husband and wife. She stated that the Veteran and the appellant maintained a home and lived together as husband and wife beginning from January 1970 to January 1983 in Chicago, Illinois, and that they lived together continuously. She stated that she did not know whether the Veteran or the appellant ever entered into any other marriage. In a January 2016 statement regarding marriage, P.M. stated that she was the appellant’s cousin and the Veteran’s friend. She reported that she had known the Veteran since January 1979. She indicated that the Veteran and the appellant were generally known as husband and wife; that neither the Veteran or the appellant ever denied the marriage; that she considered the Veteran and the appellant to be husband and wife because they were living together; that she heard the Veteran and appellant refer to each other as husband and wife; and that the Veteran and appellant maintained a home and lived together continuously as husband and wife from January 1979 to November 1982. In addition, P.M. stated that the appellant used the Veteran’s last name. She also stated that she did not know whether the Veteran and appellant ever entered into any other marriages. In a January 2016 statement regarding marriage, J.H. identified herself as the Veteran’s step-daughter. She stated that the Veteran and the appellant were generally known as husband and wife; that neither the Veteran or the appellant ever denied the marriage; that she considered the Veteran and the appellant to be husband and wife; that the Veteran and the appellant referred to each other as husband and wife; and lived together as husband and wife from approximately January 1966. J.H. also stated that the Veteran and the appellant lived together continuously and raised her, as well as her sisters T.S. and V.S. She indicated that the Veteran had not entered into other marriages. She reported that the appellant was married to J.S., but she was not sure of the date or place of the marriage or termination of the marriage. In a January 2017 brief, the appellant’s representative noted that the appellant reported that she was never married to the Veteran, but she asserted that the parties entered into a common law marriage from 1962 to 1963 while raising their biological children. The appellant also conceded that neither of her children were disabled prior to and up to the time of the Veteran’s death, or became disabled in the years leading up to reaching the age of 18. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes the appellant is not entitled to recognition as the surviving spouse of the Veteran for purposes of entitlement to compensation under 38 U.S.C. § 1151. Initially, the appellant does not contend, and the evidence of record does not show that the parties were married under Illinois state law. Rather, the appellant has contended that she entered into a common law marriage with the Veteran prior to his death. See, e.g., October 2006 claim. As discussed above, the state of Illinois does not recognize common law marriages contracted in the state after June 30, 1905. See 750 Ill. Comp. Stat. Ann. 5/214 (LexisNexis 2018). Therefore, a common law marriage cannot be established under Illinois state law. Nevertheless, the appellant may still qualify as a surviving spouse for purposes of eligibility for VA benefits if her relationship with the Veteran is “deemed” to be a valid marriage. 38 C.F.R. § 3.52. The appellant has asserted that she lived with the Veteran from approximately 1968 until his death. See, e.g., February 2011 Board hearing transcript; January 2016 statement in support of marital relationship. In support of her claim, the appellant submitted statements regarding marriage from her daughter, cousin, and niece that noted the Veteran and appellant lived together as husband and wife. See January 2016 supporting statements regarding marriage from P.M., (parties lived together from January 1979 to November 1982); J.H. (parties lived together from approximately 1966); and P.B. (parties lived together from January 1970 to January 1983). However, the Board notes that a June 1982 VA hospital summary indicated that the Veteran lived alone and was divorced. The Veteran also identified a separate address for the appellant in correspondence submitted to VA. See, e.g., December 1982 declaration of marital status. The Board has also considered the lay statements of record as to whether the Veteran and the appellant held themselves out as husband and wife. Notably, the evidence of record shows that the appellant has not consistently held herself out to be the Veteran’s spouse. In this regard, the appellant did not identify herself as the surviving spouse at the time of her initial October 1991 claim. Rather, she first indicated that she was the Veteran’s common law wife in her October 2006 application to reopen her claim for DIC. Thereafter, in a December 2008 hearing request, the appellant stated that she was the mother of the Veteran’s children. Notably, however, the hearing request form included an option to select “widow.” In addition, during the February 2011 Board hearing, the appellant denied that she was married to the Veteran and stated that the parties “just lived together.” See February 2011 Board hearing transcript, at 9. Although the appellant testified that started a relationship with the Veteran in 1967, she did not raise the issue of a common law marriage during the hearing. Thereafter, in a January 2017 brief, the appellant’s representative asserted that the parties entered into a common law marriage from 1962 to 1963. In addition, the Board finds that the evidence of record does not show that the Veteran held himself out to be married to the appellant. Indeed, the Veteran consistently reported that he was not married in correspondence with VA. See, e.g., March 1981 claim; May 1981 claim; June 1982 income-net worth statement; and December 1982 declaration of marital status. A June 1982 VA hospital summary also noted that the Veteran lived alone and was divorced. The Veteran’s death certificate further indicated that he was never married. Indeed, in a January 2017 appellate brief, the appellant’s representative acknowledged that the Veteran never claimed to be married in any of his documentation. The appellant has not alleged that she was unaware of the legal impediment to a common law marriage. In October 2017, the AOJ requested that the appellant provide information regarding her marital status and history, to include providing information and certification relation to any current or prior marriages. The AOJ also requested that the appellant submit a statement as to whether she was aware that the State of Illinois does not recognize common law marriages. However, to date, no response has been received from the appellant regarding this issue. Notably, in a March 2018 SSOC response form, the appellant indicated that she had no other information or evidence to submit. Furthermore, the evidence of record indicates that the appellant was married to J.S. prior to her purported common law marriage to the Veteran. In a January 2016 statement, the appellant reported that her marriage to J.S. ended by reason of abandonment. The Board notes that willful desertion is a grounds for divorce under Illinois state law. 750 Ill. Comp. Stat. Ann. 5/401 (LexisNexis 2018). However, it is unclear from the appellant’s statements whether the parties were legally divorced, and she has not otherwise submitted evidence of a final decree of divorce or annulment. In October 2017, the AOJ requested that the appellant provide information regarding her marital status and history, to include providing information and certification relating to any divorces or dissolutions of marriage. However, to date, no response has been received. Based on the foregoing, the Board finds that the there is insufficient evidence of a common law or an attempted marriage to be deemed valid under 38 C.F.R. § 3.52. The Board acknowledges the appellant’s history with the Veteran and is sympathetic to the difficult situation they faced regarding his illness. However, the pertinent legal authority governing recognition as a surviving spouse for VA benefits purposes is clear, and the Board is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Accordingly, the Board finds that the appellant does not meet the requirements for recognition as a surviving spouse for purposes of entitlement to compensation pursuant to 38 U.S.C. § 1151 for the cause of the Veteran’s death. The Board also finds that the appellant lacks standing to pursue a claim on behalf of her adult children. In this case, the October 1991 claim clearly reflects that the appellant sought DIC benefits on behalf of her children, to include under the provisions of 38 U.S.C. § 1151. The appropriate date on which to assess whether a person qualifies as a “child” for purposes of determining eligibility for DIC benefits is governed by 38 C.F.R. § 3.400(c)(4) and depends on when the claim was filed. See Lynch v. Wilkie, No. 16-0541, 2018 U.S. App. LEXIS 1403, at 10 (Vet. App. Oct. 23, 2018). For claims filed within 1 year after the date entitlement arose, whether a claimant is a “child” should be assessed on the date entitlement arose. For claims filed more than 1 year after the date entitlement arose, whether a claimant is a “child” should be assessed on the date the claim was received. See, id At the time of the October 1991 claim, the appellant had standing to pursue VA benefits as the custodial parent of her minor children. In this regard, the October 1991 claim was not filed within one year of the Veteran’s death, and the evidence reflects that T.S. and V.S. were 17 years old on the date that the claim was filed. Nevertheless, in a November 1991 rating decision, the RO denied the October 1991 claim for DIC based on the underlying merits. In addition, as discussed above, the December 1991 notice letter for that decision clearly recognized the appellant as the custodian of the Veteran’s children. The appellant did not file a notice of disagreement or submit new and material evidence within one year of receiving notice of the November 1991 rating decision. Therefore, the November 1991 rating decision became final. 38 U.S.C. § 7105 (1991); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1991). As such, the Board finds that there was no pending and unadjudicated claim filed on behalf of T.S. and V.S. while they were “children” for VA purposes. In October 2006, the appellant sought to reopen the claim for service connection for the cause of the Veteran’s death. The record reflects that the appellant’s children were 32 years old at this time. The claims file does not contain a properly executed VA Form 21-22a designating the appellant as the duly authorized representative for T.S. and V.S., and she is not a Member of Congress. In addition, the appellant has not contended, nor does the evidence suggest, that her children have not been of full age or capacity at any time since the October 2006 claim to reopen. Thus, the appellant lacks standing to file claims on behalf of her adult children. The Board has also considered the appellant’s statements that she is filing a claim on behalf of her children because the RO erred in denying their claim. However, as discussed above, the appellant’s claim for DIC benefits on behalf of her children was denied in a final rating decision. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). It has been observed that “[n]o equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.” Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) [citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)]. Based on the foregoing, the Board finds that the appellant does not have the necessary standing to pursue a claim on behalf of her adult children, and the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel