Citation Nr: 19106938 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 17-23 019 DATE: January 29, 2019 ORDER Entitlement to recognition of the appellant as the surviving spouse of the Veteran for Department of Veterans Affairs (VA) death benefits is denied. FINDINGS OF FACT 1. The Veteran and the appellant were married in February 2015. 2. The Veteran and the appellant did not have a child born of their union. 3. The Veteran died in October 2015. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran’s surviving spouse for purposes of VA survivor benefits have not been met. 38 U.S.C. §§ 101, 103, 1304, 5124, 5107; 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53, 3.54, 3.204, 3.205. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the U.S. Army from June 1943 to August 1944. The Veteran died in October 2015. The appellant declined a hearing in this case. The Board notes that an April 2017 Administrative Decision by the VA Regional Office found that the asserted common law marriage between the Veteran and the appellant cannot be recognized for VA purposes. The Board further notes that while the appellant has submitted a letter drafted by an attorney, the attorney has not filed a VA Form 21-22a, Appointment of Individual As Claimant’s Representative. Thus, the Board finds that the appellant is unrepresented. Survivor Benefits – Generally The appellant seeks recognition as the Veteran’s surviving spouse in order to obtain survivor benefits. Survivor benefits include dependency and indemnity compensation (DIC) benefits, VA death pension benefits, and VA death compensation, as described below. DIC benefits may be paid to the surviving spouse of a veteran who died from a service-connected disability. 38 U.S.C. § 1310. A “surviving spouse” is a person (1) whose marriage to a veteran meets the requirements of 38 C.F.R. § 3.1(j); (2) who was married to 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 death (barring circumstances not applicable here); and (4) has not remarried since the veteran’s death. See 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). Under § 3.1(j), “[m]arriage means a marriage 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). For marriages that occurred after the veteran’s discharge from service, entitlement to dependency and indemnity compensation benefits also requires, as relevant here, that the surviving spouse be married to the veteran for at least one year prior to the veteran’s death. 38 U.S.C. § 1304(2); see 38 C.F.R. § 3.54(c)(2). VA death pension 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; or (3) in the case of Vietnam era Veterans, prior to May 8, 1985. 38 U.S.C. § 1541; 38 C.F.R. § 3.54(a). VA death compensation may be paid to a surviving spouse, who, with respect to date of marriage could have qualified as a surviving spouse for death compensation under any law administered by VA in effect on December 31, 1957, or who was married to the Veteran: (1) Before the expiration of 15 years after termination of the period of service in which the injury or disease which caused the Veteran’s death or injury was incurred or aggravated; or (2) one year or more, or (3) 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; 38 C.F.R. § 3.54(b). DIC benefits are payable to a surviving spouse who was married to the Veteran: (1) within 15 years of the end of the period of service in which the injury or disease causing the Veteran’s death was incurred or aggravated; or (2) one year or more; or (3) 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. § 1304; 38 C.F.R. § 3.54(c). Consequently, status as a surviving spouse of the Veteran is a threshold requirement for DIC, death compensation, and death pension benefits. Recognition of the appellant as the surviving spouse of the Veteran The appellant claims entitlement to survivor’s benefits as the surviving spouse of the deceased Veteran. 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 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); see Burden v. Shinseki, 727 F.3d 1161 (Fed. Cir. 2013) (stating that 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”). After thorough review of the evidence of record, the Board finds that the statutory requirements for recognition of the appellant as the surviving spouse of the Veteran have not been met. Here, the evidence establishes that the Veteran and appellant were married in February 2015, and the Veteran died in October 2015. Thus, their marriage lasted less than one year prior to the Veteran’s death (approximately eight months). On her June 2016 notice of disagreement, the appellant asserts that she lived with the Veteran for 30 years prior to their marriage and that she cared for the Veteran during this time. On an August 2016 statement of marital relationship, the appellant noted that she began a common law marriage with the Veteran in October 1992 in Mississippi. The State of Mississippi does not recognize common law marriages that began after April 5, 1956, and the appellant has not submitted a statement asserting that she was unaware that common law marriages are no longer recognized in the State of Mississippi. In addition to the appellant’s allegation of a common law marriage being invalid under Mississippi law, there is also insufficient evidence showing that the appellant and the Veteran held themselves out to the public as a married couple after October 1992. For example, on the Veteran’s December 2009 application for pension, he listed the appellant as his “caretaker” and declared his marital status as “separated for 35 years.” On the Veteran’s February 1994 improved pension eligibility verification report, he reported that he was “Married—Not Living with Spouse” and underlined the terms “You are legally married but estranged from your spouse.” This tends to show that the Veteran and the appellant did not hold themselves out as husband and wife continuously since October 1992. On an additional August 1995 improved pension eligibility verification report, the Veteran again reported that he was “Married—Not Living with Spouse” and underlined the terms “You are legally married, but separated from your spouse.” These documents tend to show that the Veteran and the appellant did not hold themselves out as husband and wife since October 1992, the date of the appellant’s asserted common law marriage. Further, as the Veteran’s file does not contain a divorce decree, this tends to show that the Veteran may have still been married to his previous spouse at the time of his February 2015 marriage to the appellant. The Board acknowledges the lay statement submitted in April 2016 stating that the Veteran and the appellant lived together for many years, the April 2016 letter from an attorney stating that the appellant lived with the Veteran for 30 years, shared a home with him, cared for him, shared a bank account with him, was legally married to him in February 2015, and held power of attorney over him, and the July 2016 supporting statement regarding marriage submitted by the appellant which states that she and the Veteran “always lived together as husband and wife.” The fact that the Veteran and the appellant lived together does not the change the fact that they were married for less than one year. The Board finds that the credible evidence shows the Veteran and the appellant were not married for more than one year prior to his death and did not bear a child together. The Board is sympathetic to the appellant’s assertions, but the status sought as the Veteran’s surviving spouse of the Veteran is precluded by law. There is no allegation or suggestion in the evidence of record disputing the facts described above. On the basis of the foregoing, the Board must find that the appellant lacks basic eligibility for VA death benefits on the basis of her lack of status as the Veteran’s surviving spouse for VA benefits purposes. In cases such as this, where the law is dispositive, the claim must be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Caruso, Associate Counsel