Citation Nr: 18153734 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 17-13 430 DATE: November 28, 2018 ORDER Entitlement to recognition of the Appellant as the surviving spouse of the Veteran for the purpose of Department of Veterans Affairs (VA) death benefits is denied. FINDING OF FACT The Appellant was not married to the Veteran for at least 1 year prior to his death, or within 15 years of the end of his service; and their relationship did not produce a child. CONCLUSION OF LAW The Appellant is not entitled to recognition as the surviving spouse of the Veteran for the purpose of VA death benefits. 38 U.S.C. §§ 101(3), 103, 1304, 1541, 5107; 38 C.F.R. §§ 3.1(j), 3.50, 3.54, 3.102. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1972 to July 1974. He died on January [redacted], 2015. The Appellant is his widow. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 decisional letter. Entitlement to recognition of the Appellant as the surviving spouse of the Veteran for the purpose of VA death benefits. VA regulations provide that a surviving spouse may qualify for pension, compensation or dependency and indemnity (DIC) if the marriage to a veteran occurred before or during his or her service or, if the parties were married after a veteran’s service, DIC is payable to the surviving spouse of a veteran who died after January 1, 1957, and who was married to a veteran before the expiration of 15 years after the end of a veteran’s period of service in which the injury or disease causing the death of a veteran was incurred or aggravated, or where a veteran and the surviving spouse were married for at least one year, or where a veteran and the surviving spouse were married for any length of time and their relationship produced a child either during or prior to the marriage. 38 U.S.C. § 1304; 38 C.F.R. § 3.54(c). Here, the relevant facts are not in dispute. The Appellant’s claim documents that she and the Veteran were married on March 15, 2014. The Veteran’s death certificate documents that the Veteran died less than one year later on January [redacted], 2015, and the Appellant sought DIC thereafter. There is no suggestion, and it is not contended, that the Veteran and the Appellant’s relationship produced a child. Additionally, the record reflects that the Veteran and the Appellant resided in the Commonwealth of Virginia throughout the entirety of their relationship, and Virginia does not recognize common law marriages. For a marriage to be valid in the Commonwealth, the Code of Virginia requires that the marriage be under a license and properly solemnized. Va. Code Ann. § 20-13 (“[e]very marriage in this Commonwealth shall be under a license and solemnized in the manner herein provided.”). Consistent with the plain language of this statute, the Supreme Court of Virginia has held that “no marriage or attempted marriage, if it took place in this State, can be held valid here, unless it has been shown to have been under a license, and solemnized according to our statutes.” Offield v. Davis, 40 S.E. 910, 914 (1902) (holding that a common law marriage is not valid in Virginia because the Code requires a license and solemnization). It is not alleged or shown that the appellant and the Veteran ever lived as husband and wife, or otherwise, outside of Virginia; therefore, a common law marriage cannot be established under Virginia law. Regardless of the fact that the appellant cannot establish a valid common law marriage, VA may still deem the marriage as valid for VA purposes. In this regard, 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). There is an obvious legal impediment to a common law marriage of the appellant and the Veteran, because the Commonwealth of Virginia does not recognize common law marriage. However, the appellant has to sufficiently demonstrate that the requirements under 38 C.F.R. § 3.52 for deeming a marriage valid that is invalid due to legal impediment. In this case, there is no indication in the record that the Veteran and appellant even attempted to enter into a common law marriage prior to March 15, 2014. In fact, the record shows that when the Veteran filed for compensation benefits in July 2013, he noted on his VA Form 21-526, Veteran’s Application for Compensation and/or Pension, that his marital status was “widowed” and the only spousal information he provided was related to his deceased spouse (who died in June 2011 and whom he married in April 1959). A June 2014 private treatment record documents the Veteran’s report that he had plans to go on a “road trip with [his] new wife on a honeymoon,” and that they had been “married 3 moths.” In November 2014, the Veteran was awarded service connection benefits. In the notification letter, he was advised that he was being paid as a “single Veteran with no dependents” and provided instructions on how to file for additional benefits based on dependency. As a result, that same month, the Veteran filed a VA Form 21-686c, Declaration of Status of Dependents, in which he identified the Appellant as his spouse, and stated that they were married on March 15, 2014. Based on the foregoing, there is no suggestion that the Appellant qualifies for DIC payments as a surviving spouse because: (1) the parties were not married until nearly 40 years after the Veteran’s service came to an end; (2) the parties were not married for at least one year; and (3) there is no suggestion in the record that the parties’ relationship produced a child. 38 U.S.C. § 1304; 38 C.F.R. § 3.54(c). (Continued on the next page)   In her appeal, the Appellant does not claim that she meets the regulatory qualifications to receive DIC payments as a surviving spouse. Instead, she claims that VA should make an exception in this case because she and the Veteran met in February 2013 and planned to marry in the summer of 2013, but were unable to do so due to the medical treatments the Veteran was receiving for his service-connected conditions. However, VA regulations do not provide for such an exception, and the Board cannot provide compensation except as provided by law and regulation. Consequently, entitlement to DIC must be denied because the Appellant does not meet the criteria necessary to qualify for compensation as a surviving spouse for the purposes of DIC. 38 U.S.C. § 1304; 38 C.F.R. § 3.54(c). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel