Citation Nr: 18159748 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 16-49 545 DATE: December 19, 2018 ORDER Recognition as the Veteran’s surviving spouse for Dependency and Indemnity Compensation (DIC) benefits is granted. FINDINGS OF FACT 1. The appellant and the Veteran married in August 1987 and they did not divorce. 2. The Veteran died in May 1994. The Veteran was service-connected for cause of death for ischemic heart disease. 3. After the Veteran’s death, the appellant did not remarry or did not hold herself out to be married. CONCLUSION OF LAW The appellant may be recognized as the surviving spouse of the Veteran since the Veteran’s death for the purpose of entitlement to VA benefits. 38 U.S.C. §§ 101, 103, 5107; 38 C.F.R. § 3.50. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1966 to August 1973. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2016 notification of the Department of Veterans Affairs (VA) Regional Office (RO). The appellant contends that she should be recognized as the deceased Veteran’s surviving spouse and granted entitlement to VA death benefits since his death. When a Veteran dies, the surviving spouse may be eligible for VA death benefits, to include dependency and indemnity compensation (DIC), death compensation, and death pension. 38 U.S.C. §§ 1121, 1310, 1541; 38 C.F.R. § 3.50 (a). Consequently, surviving spouse status is a threshold requirement for both DIC and death pension benefits. For a person to establish recognition as a surviving spouse of a deceased Veteran, there must be evidence of a valid marriage to the Veteran under the laws of the appropriate jurisdiction. Aguilar v. Derwinski, 2 Vet. App. 21 (1991). The validity of a marriage is determined based upon the law of the jurisdiction where the parties resided at the time of marriage or when the rights to benefits accrued. 38 C.F.R. § 3.1(j). For VA purposes, a surviving spouse is defined as a person whose marriage to a 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 fault of the spouse; and (2) has not remarried or 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 C.F.R. § 3.50. 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). A valid marriage may be established by various types of documentary evidence together with the claimant’s certified statement concerning the date, place and circumstances of dissolution of any prior marriage, provided that those facts, if they were to be corroborated by the evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205(a). The appellant and the Veteran married in August 1987. The Veteran died in May 1994. From November 1, 2002, to February 1, 2012, the appellant cohabitated with a friend, J.A., until his death. The RO recognized the cohabitation as a marriage because the appellant stated it was a marriage on her application for DIC. As a result, her benefits ceased for that period. The appellant contends the relationship was not a marriage. In support of the contention the she did not remarry, the appellant submitted statements from neighbors and friends, including J.A.’s sister, that confirmed the appellant was not married to J.A., and she did not hold herself out as married to J.A. In addition, J.A.’s amended death certificate lists the appellant as a friend and not as a spouse. After review of the evidence, the Board finds the appellant is entitled to benefits since the Veteran’s death. The law clearly requires that a surviving spouse be married to the Veteran at the time of his death to be considered the surviving spouse. As the appellant was married to the Veteran at the time of his death, the appellant is the Veteran’s surviving spouse for the purpose of establishing entitlement to certain VA benefits. 38 C.F.R. §§ 3.1(j), 3.50. The Board finds the appellant was not remarried for the period from November 1, 2002, to February 1, 2012. Although the appellant wrote on her application for DIC benefits that she remarried J.A. and that the common law marriage was terminated by death, the evidence includes persuasive evidence that the claimant did not hold herself out as married to the Veteran. Therefore, the Board finds that the preponderance of the evidence is against a finding that the Veteran held herself out as married to J.A. Therefore, the evidence shows that relationship was not a marriage, common law or otherwise. Accordingly, the appellant did not remarry or hold herself out as married after the Veteran’s death, and she is recognized as the Veteran’s surviving spouse for VA death benefits purposes. 38 C.F.R. § 3.50(b). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Kass, Associate Counsel