Citation Nr: 18159776 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-08 136 DATE: December 20, 2018 ORDER Recognition as the Veteran’s surviving spouse for purposes of establishing eligibility for payment of Department of Veterans Affairs (VA) Dependency and Indemnity Compensation (DIC) benefits is denied. FINDINGS OF FACT 1. The Veteran and the appellant were married in July 2015, and had no children together. 2. The Veteran died in March 2016; he and the appellant were married for less than one year prior to his death. 3. Common law marriage is not recognized in California, and the establishment of a marital relationship for VA purposes prior to the date of their July 2015 marriage cannot otherwise be established. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran’s surviving spouse for purposes of eligibility for VA death benefits have not been met. 38 U.S.C. §§ 101, 103, 1102, 1304, 1310, 1311, 1541; 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53, 3.54, 3.205. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from February 1968 to February 1972, to include service in Vietnam from August 1968 to August 1969. His decorations included the Combat Action Ribbon. He died in March 2016. The appellant seeks to establish status as his surviving spouse for purposes of VA death benefits. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2016 Administrative Decision by the VA Pension Maintenance Center in St. Paul, Minnesota. Entitlement to recognition as the Veteran’s surviving spouse for purposes of establishing entitlement to VA death benefits. The appellant seeks recognition as the Veteran’s surviving spouse for purposes of entitlement to VA death benefits. As is pertinent here, the law provides that VA death benefits may be paid to a surviving spouse who was married to a veteran: (1) one year or more prior to a veteran’s death, or (2) for any period of time if a child was born of the marriage, or (3) was born to them before the marriage. 38 U.S.C. §§ 1102, 1304, 1541; 38 C.F.R. § 3.54. The term “surviving spouse” means a person who was the spouse of the veteran at the time of a veteran’s death, and who lived with the veteran continuously from the date of marriage to the date of a veteran’s death (except where there was a separation which was due to the misconduct of, or procured by, a veteran without the fault of the spouse in the case of temporary separations) and who has not remarried or (in cases not involving remarriage) has not since the death of a veteran lived with another person and held himself or herself out openly to the public to be the spouse of such other person. See 38 U.S.C. §101(3); 38 C.F.R. § 3.50. For purposes of VA benefits, a marriage means a marriage valid under 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 U.S.C. § 103(c); 38 C.F.R. § 3.1(j). In this case, the parties (the Veteran and the appellant) resided in the state of California. Where an attempted marriage is invalid by reason of legal impediment, VA law and regulations allow for certain attempted marriages to be “deemed valid” if certain legal requirements are met. Such an attempted marriage will be “deemed valid” if: (a) the attempted marriage occurred one year or more before the Veteran died; 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 the attempted marriage until his death; and (d) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits. 38 U.S.C. §103(a); 38 C.F.R. § 3.52. Where a surviving spouse has submitted proper proof of marriage and also meets the requirements of 38 C.F.R. § 3.52, the claimant’s signed statement that she had no knowledge of an impediment to the marriage to the veteran will be accepted, in the absence of information to the contrary, as proof of that fact. 38 C.F.R. § 3.205(c). In cases in which there is an impediment to entering into a common-law marriage, if the appellant was unaware of the impediment, then an otherwise invalid common-law marriage could be deemed valid. See Colon v. Brown, 9 Vet. App. 104 (1996). In this case, the facts do not demonstrate that the appellant satisfies the requirement to be recognized as the Veteran's surviving spouse for purposes of VA death benefits. The appellant and the Veteran were married in July 2015 in California. The Veteran died in March 2016 and was married to the appellant at the time of his death. The marriage took place more than 15 years after the termination of the Veteran’s period of service in February 1972 and the Veteran and the appellant were not married for more than one year prior to his death. The appellant has not contended, and there is no evidence to support a finding that a child was born of the marriage. Therefore, the appellant does not meet the criteria for an award of DIC under 38 C.F.R. § 3.54(c). In support of her claim to overcome this bar to eligibility, the appellant has contended that she and the Veteran cohabitated since approximately June 2003, held themselves out as married to the community, and had the intention of becoming officially married for some time prior to the official act. Indeed, the appellant has submitted statements from multiple friends and family members confirming that she and the Veteran were generally known as husband and wife from at least June 2003 onward. There is no statement of record from any person that the appellant and the Veteran did not hold themselves out as husband and wife. The Board initially notes that common law marriages may not be formed in California. The question then becomes whether the appellant was aware of the impediment that common law marriages may not be formed in California. However, the appellant does not contend that she and the Veteran believed that they were legally married or in a “common law marriage” prior to July 2015. Indeed, in a June 2016 Statement in Support of Claim, the appellant stated she was aware California did not recognize common law marriage. 38 U.S.C. § 103(a); see also Colon, 9 Vet. App. 104 (1996). Furthermore, she explained her and the Veteran did not legally marry because she did not want to lose her social security or Med-Cal benefits. See, e.g., June 2016 Statement in Support of Claim. This further demonstrates that they did not believe themselves to be legally married prior to July 2015. Finally, the Board has also considered whether the appellant’s marriage qualifies under the criteria for a marriage deemed valid. Here, as detailed, the Veteran and the appellant lived in California, a jurisdiction that does not recognize common law marriage. Thereafter, they entered into a marriage, but such occurred less than a year before the Veteran’s death. Under these facts and circumstances, as the marriage occurred less than a year prior to the Veteran’s death, there is no basis for the appellant qualifying for benefits under the provisions outlined in 38 C.F.R. § 3.52. The Board is sympathetic to the appellant’s claim. However, the appellant does not satisfy the legal requirements for recognition as the Veteran’s “surviving spouse” for VA death benefits. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The appeal must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel