Citation Nr: 1808871 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-10 986A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to recognition of the Appellant as the surviving spouse of the Veteran for the purpose of receiving VA death benefits. ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from July 1964 to June 1968. He died in September 2012. The Appellant is seeking recognition as the Veteran's surviving spouse for the purpose of receiving VA death benefits. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2013 decision of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO). The Appellant was scheduled for a September 2017 Board videoconference hearing. In July 2017 correspondence, she indicated that she would not be attending the scheduled hearing; therefore, the hearing request has been withdrawn. FINDING OF FACT The Veteran and Appellant divorced prior to the date of his death. CONCLUSION OF LAW The Appellant is not entitled to recognition as the Veteran's surviving spouse for the purpose of receiving VA death benefits. 38 U.S.C. §§ 101, 103 (2012); 38 C.F.R. §§ 3.1 (j), 3.5, 3.50 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2018). With regard to the Appellant's status as a beneficiary under 38 U.S.C. §§ 1310 and 1541, VCAA notice is not required because the issue presented is solely one of statutory interpretation and the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); see also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159 (d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). The pertinent facts regarding the Appellant's marital status and the date of the Veteran's death are not in dispute; instead, resolution of the claim is dependent on interpretation of the applicable laws and regulations pertaining to the Appellant's entitlement as a claimant to VA death benefits. The VCAA is therefore inapplicable and need not be considered with regard the issue of Appellant's status as an eligible beneficiary under 38 U.S.C.A. §§ 1310 and 1541. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004. Hence, no further notice or assistance is required to assist the Appellant in the development of the claim. Law and Analysis For VA purposes, a marriage is considered 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 U.S.C.A. § 103 (c); 38 C.F.R. § 3.1(j). A surviving spouse is defined as (1) a person in a recognized marriage for VA purposes; (2) who was the spouse of the Veteran at the time of the Veteran's death; (3) who lived with the Veteran continuously from the date of marriage to the date of the Veteran's death except, as provided in 38 C.F.R. § 3.53 (a), and (4) who, except as provided in 38 C.F.R. § 3.55, 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 (b). VA death benefits may be paid to a surviving spouse who was married to the Veteran: (1) one year or more prior to the Veteran's death or (2) for any period of time, if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C. §§ 1102, 1304, 1541 (2012); 38 C.F.R. § 3.54 (2018). One claiming to be the spouse of a veteran has the burden to come forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The threshold question that must be addressed in any claim for VA benefits is whether the person seeking the benefit is a proper claimant for the benefit sought. If the appellant is not established as a proper claimant, the claim can proceed no further. The appellant has the burden to establish her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). The Appellant contends that she should be recognized as the Veteran's surviving spouse for purposes of entitlement to VA death benefits. The facts of this case are not in dispute. The record does not include a certificate of marriage or a divorce decree for the Appellant and the Veteran. However, a certificate of death shows that the Veteran died in September 2012 and shows that he was divorced at the time of his death. The Appellant does not dispute that she and the Veteran were divorced, but contends in an April 2014 substantive appeal that even though she and the Veteran were legally divorced, she cared for him, continued to take care of him, and she contends that she should at least be considered as a common law wife. For VA benefits purposes, a marriage means a marriage valid under the law of the place where the parties resided at the time of the marriage, or where the parties resided when the right to benefits accrued. 38 C.F.R. § 3.1 (j). Insomuch as the appellant contends that she should be considered as a common law wife, the state in which the Appellant and the Veteran resided at the time of the Veteran's death, does not recognize common law marriages or marriages by consent. See State v. Wilson, 121 N.C. 650, 28 S.E. 416 (1897). Further, although North Carolina courts "will recognize as valid a common law marriage 'if the acts alleged to have created it took place in a state in which such a marriage is valid,'" State v. Alford, 298 N.C. 465, 473, 259 S.E.2d 242, 247 (1979), the Appellant does not contend and the evidence does not demonstrate that she and the Veteran entered into a common law marriage, after their legal divorce, in a state where such marriages are recognized as valid. While the Board finds that the Appellant is credible in reporting that she left the Veteran due to his posttraumatic stress disorder and alcohol dependence in an April 2014 statement, the Board finds, nonetheless, that she and the Veteran were divorced and remained divorced at the time of his death. Accordingly, the Appellant does not meet the definition of surviving spouse for the purpose of receiving VA death benefits. See 38 C.F.R. § 3.50 (b). As such, the Board must find that the Appellant lacks basic eligibility for VA death benefits on the basis of her claimed status as the Veteran's surviving spouse. The legal criteria governing the status of a deceased Veteran's widow as a surviving spouse are clear and specific, and the Board is bound by them. The Board has carefully reviewed the Appellant's arguments, and the law has been considered in the most favorable light possible. However, for the reasons described above, the status which the Appellant seeks as the Veteran's surviving spouse is precluded by law. 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 (2012); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board finds that the preponderance of the evidence is against a finding that the Appellant was the Veteran's surviving spouse for VA death benefits purposes. Therefore, the question of entitlement to VA death benefits is rendered moot, and the doctrine of reasonable doubt is not for application. See 38 U.S.C. § 5107 (b) (2012), Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal seeking to establish that the Appellant is the Veteran's surviving spouse for the purpose of VA death benefits is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs