Citation Nr: 19192588 Decision Date: 12/10/19 Archive Date: 12/10/19 DOCKET NO. 16-45 073 DATE: December 10, 2019 ORDER Recognition as the surviving spouse of the Veteran for Department of Veterans (VA) benefits purposes is granted. FINDING OF FACT 1.The appellant and the Veteran were married by ceremony in November 2015, less than one year before the Veteran’s death in December 2015. 2. The Veteran and appellant held themselves out as husband and wife for more than one year prior to the Veteran’s death. 3. The Veteran and appellant resided together in Massachusetts for more than one year prior to the Veteran’s death. 4. The appellant lacked knowledge that a common law marriage is not recognized in the state of Massachusetts when she entered into the marriage. 5. No other claim has been filed by anyone purporting to be a legal surviving spouse who has then been found entitled to death benefits. CONCLUSION OF LAW The criteria for recognition as the surviving spouse of the deceased Veteran for VA benefits purposes have been satisfied. 38 U.S.C. §§ 101, 1102, 1304, 1541; 38 C.F.R. § § 3.1 (j), 3.205(a)(7), 3.50, 3.52, 3.53, 3.54. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1951 to March 1953. He died in December 2015. The appellant’s application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child was received in January 2016. The appellant was notified that her claim for dependency and indemnity compensation (DIC) was denied on July 2016. Recognition as the surviving spouse of the Veteran for VA benefits purposes The appellant contends that she is entitled to DIC benefits, death pension, and accrued benefits as the surviving spouse of the deceased Veteran. The term “surviving spouse” means 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. 38 U.S.C. § 101 (3); 38 C.F.R. § 3.50 (b). For VA benefits purposes “marriage” 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 the purposes of entitlement to VA death benefits, the veteran must have been married to the appellant for over one year, or for any period of time if a child was born of the marriage. 38 U.S.C. § 1304; 38 C.F.R. § 3.54. VA recognizes “marriages other than by ceremony,” including common law marriages, under certain circumstances. The Board may rely on “any other secondary evidence which reasonably supports a belief by the [adjudicator] that a valid marriage actually occurred.” C.F.R. § 3.205(a)(7). 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: (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. Lack of residence in a jurisdiction recognizing a common law marriage is not necessarily a bar to establishment of a common law marriage for the surviving spouse. VAOPGCPREC 58-91 (June 17, 1991), published at 56 Fed. Reg. 50,151 (1991). Under 38 C.F.R. § 3.52, a common law marriage could be “deemed valid” on the theory that the surviving spouse could have entered into the purported common law marriage without knowledge of the fact that there was an impediment to the marriage. Colon v. Brown, 9 Vet. App. 104 (1996). The legal impediment in this case would be the jurisdiction’s non-recognition of a common law marriage. Id. at 107 (citing Sandoval v. Brown, 7 Vet. App. 7, 10 (1994)). Where a surviving spouse has submitted proper proof of marriage in accordance with 38 C.F.R. § 3.205 (a), 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). Here, the marriage certificate for the Veteran and appellant indicates they were married by ceremony in November 2015. The Veteran’s death certificate indicates he died in December 2015, less than one year following the ceremonial marriage. The appellant submitted a statement in March 2016 that she had lived with the Veteran as man and wife together for 34 years. She noted that their landlord, friends, and the Veteran’s sons from a previous marriage all believed they were married. Two of the Veteran’s sons submitted a joint statement in July 2019 that they considered the appellant to be their mom, based on the relationship they had with her for over 30 years. At her July 2019 hearing, the appellant provided competent and credible testimony that she and the Veteran cohabitated continuously and considered themselves to be married from 1984 until his death. See July 2019 Board hearing transcript, p. 3. She also affirmed that she was unaware that Massachusetts did not recognize common law marriage. Id. at 12. The appellant contends that she is entitled to recognition as a surviving spouse because she and the Veteran lived as husband and wife in a common law marriage for approximately 30 years prior to the November 2015 ceremonial marriage. She also notes that she believed, as well as their friends and family, that they were married during those 30 years. The evidence does not indicate that any claim has been filed by a legal surviving spouse who has been found entitled to death benefits. The Board finds this marriage may be deemed valid for VA benefits purposes even though common law marriage is not recognized in Massachusetts. As discussed above, according to the Veteran’s competent testimony, the Veteran and appellant began living together as husband and wife in 1984 and cohabitated continuously from that time until the Veteran’s death. The record does not show that the appellant was aware during that time that common law marriage was not legal in Massachusetts and that she believed they were married up until the Veteran suggested that they have a ceremonial wedding in November 2015. The Agency of Original Jurisdiction determined that the appellant knew that common law marriage was not legal in Massachusetts based on her statements during the appeal; however, this information, according to the appellant’s statements, was not known to her until after she was married ceremonially. As noted, she testified at the Board hearing that she was “shocked” to find that Massachusetts was not one of the states that recognized common law marriage. Id. at 12. The Board finds that, based upon the appellant’s testimony and the totality of the evidence, the appellant did not know about the legal impediment (that common law marriage was not permitted in Massachusetts) when she entered into the marriage with the Veteran. For these reasons, the Board finds that the appellant’s marriage to the Veteran prior to the November 2015 ceremonial marriage is deemed valid for VA benefits purposes. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Therefore, the Board finds the appellant is entitled to recognition as the Veteran’s surviving spouse for purposes of establishing entitlement to VA death benefits. 38 U.S.C. § 1304; 38 C.F.R. § 3.54. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond 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.