Citation Nr: 19184530 Decision Date: 11/07/19 Archive Date: 11/07/19 DOCKET NO. 16-28 828 DATE: November 7, 2019 ORDER The petition to reopen the claim of entitlement to status as a surviving spouse for purposes of U. S. Department of Veterans Affairs (VA) death benefits is granted. Entitlement to status as a surviving spouse for purposes of VA death benefits is denied. FINDINGS OF FACT 1. The appellant and Veteran married in June 1981 but divorced in May 1998. 2. The Veteran died in July 2008. 3. In an unappealed November 2013 decision, the Board of Veterans’ Appeals (Board) denied a claim of entitlement to status as a surviving spouse for purposes of VA death benefits. 4. Evidence received since November 2013 relates to unestablished facts necessary to substantiate the claim of entitlement to status as a surviving spouse for purposes of VA death benefits and raises a reasonable possibility of substantiating the claim. Since then, the appellant has provided lay statements describing the ways in which she believes she is entitled to VA death benefits. CONCLUSIONS OF LAW 1. The November 2013 Board decision that denied a claim of entitlement to status as a surviving spouse for purposes of VA death benefits is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2018). 2. New and material evidence has been received to reopen the claim of entitlement to status as a surviving spouse for purposes of VA death benefits. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for the appellant to be recognized as the surviving spouse of the Veteran and have status to bring a claim for VA death benefits or for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 101, 103 (2012); 38 C.F.R. §§ 3.1 (j), 3.50, 3.52, 3.53, 3.54, 3.215 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The record indicates that the Veteran had service between 1981 and 1998. The Veteran died in July 2008. The appellant seeks recognition as his surviving spouse for the purpose of entitlement to VA benefits. This matter comes to Board on appeal of a rating decision by a VA Regional Office (RO). In August 2019, the appellant testified in a hearing convened at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is included in the electronic record and has been reviewed. Claim to Reopen As noted above, new and material evidence has been included in the claims file since the final November 2013 Board decision. As such, the petition to reopen the claim of entitlement to status as a surviving spouse for purposes of VA death benefits is granted. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.156, 20.1100 (2018). The Claim for Death Benefits VA defines “marriage” as a marriage that is 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). VA recognizes “marriages other than by ceremony,” including common law marriages, under certain circumstances. See 38 C.F.R. § 3.205 (a)(6). In jurisdictions where marriages other than by ceremony are recognized, marriage is established by affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parties held themselves out as married, and whether they were generally accepted as such in the communities in which they lived. 38 C.F.R. § 3.205 (a)(6). Under 38 C.F.R. § 101 (3), a “surviving spouse” is defined as a person who was the spouse of a veteran at the time of the veteran’s death, and who lived with the veteran continuously from the date of marriage to the date of the veteran’s death. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The record documents that the Veteran and appellant married in June 1981. The record also documents that they divorced in May 1998. These basic facts indicate that the appellant cannot be deemed a surviving spouse for purposes of VA death benefits based on the death of the Veteran. The appellant provided evidence indicating that she and the Veteran attempted to reconcile prior to the Veteran’s death. But she has been clear that she neither cohabitated nor legally remarried the Veteran after they divorced. The Board considered whether the reconciliation amounted to a common law marriage. However, as the appellant indicated during the hearing, she and the Veteran lived entirely in the State of Tennessee during the reconciliation, which is a jurisdiction that does not recognize common law marriage. See Lightsey v. Lightsey, 56 Tenn. App. 394, 408; 407 S.W.2d 684, 690 (1966) (“It is settled law in Tennessee that []a common law marriage cannot be contracted within this State.”). Therefore, as previously noted, the Veteran and appellant were not validly married, including by way of a common law marriage, at the time of the Veteran’s death. The appellant also provided evidence that her marriage to the Veteran may have involved abusiveness related to posttraumatic stress disorder (the Veteran did not have a service-connected disability). An individual may be considered a “surviving spouse” for VA purposes when there is a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse. 38 C.F.R. § 3.50 (b)(1). In this case, the Veteran and the appellant were not separated at the time of his death. They were divorced. Thus, despite the evidence of record from the appellant that her marriage to the Veteran may have involved abusive behavior, the fact remains that they were not spouses at the time of his death. See Haynes v. McDonald, 785 F.3d 614 (Fed. Cir. 2015) (38 C.F.R. § 3.50 requires that a veteran and claimed surviving spouse be married at the time of the veteran’s death, even in cases where a veteran and former spouse divorced due to a veteran’s abuse). Throughout the appeal period the appellant has been honest with VA about her marital status. She has not attempted to mislead VA about her relationship with the Veteran. Unfortunately, benefits are not due to her in this case. The Board is sympathetic to the appellant’s claim but is bound by the law, which clearly states that she is not eligible as a surviving spouse of the Veteran. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.