Citation Nr: 20004409 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 16-17 035 DATE: January 17, 2020 ORDER Entitlement to recognition as the Veteran’s surviving spouse for purposes of VA benefits is granted. FINDINGS OF FACT 1. The appellant and the Veteran were married by ceremony in December 2013, less than one year before the Veteran’s death in January 2014. 2. The Veteran and the appellant held themselves out as husband and wife for more than one year prior to the Veteran’s death. 3. The Veteran and the appellant resided together in Kentucky, and traveled to New Jersey a couple of times a year, for more than one year prior to the Veteran’s death. 4. The appellant lacked knowledge that a common law marriage is not valid in the states of Kentucky or New Jersey 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 of the appellant as the Veteran’s surviving spouse for purposes of VA benefits have been met. 38 U.S.C. §§ 101, 103, 1102, 1304, 1541, 5124, 5107 (2012); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53, 3.54, 3.205 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, unfortunately, passed in January 2014. Given such, prior to discussing the appeal at hand, the Board would be remiss if it did not recognize his outstanding service. The Veteran, who served on active duty in the United States Army from April 1964 to January 1967 and received the National Defense Service Medal, was clearly a credit to the Army and to his family, and his service to his country is greatly appreciated. Service connection for the cause of the Veteran’s death was granted in a February 2014 rating decision. The Veteran’s application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child was received on February 2014. In February 2014 and April 2014 the appellant was notified that her claim for DIC was denied. The appellant testified before the undersigned Veterans Law Judge (VLJ) in October 2019. A copy of the transcript has been reviewed and associated with the claims file. 1. Entitlement to recognition as the Veteran's surviving spouse for purposes of VA benefits. The appellant in this case seeks recognition as the Veteran’s surviving spouse in order to obtain VA dependency and indemnity compensation (DIC). DIC benefits may be paid to the surviving spouse of a veteran who died from a service-connected condition. 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. § 3.5(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 require, 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). VA 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). Where an attempted marriage is invalid by reason of a legal impediment, the marriage will nevertheless be deemed valid if: (a) the marriage occurred one year or more before the Veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage, 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 marriage to the date of his or her death and (d) no claim has been filed by a legal surviving spouse. 38 U.S.C. § 103 (2012); 38 C.F.R. § 3.52 (2018). The determination regarding knowledge of a legal impediment is viewed in terms of “what the appellant’s state of mind was at the time that the invalid marriage was contracted.” Dedicatoria v. Brown, 8 Vet. App. 441, 444 (1995). A VA General Counsel Opinion has held that where an appellant entered into common law marriage without knowledge that such marriage was not recognized by the jurisdiction in which it took place, the legal impediment would not necessarily bar recognition of the marriage for VA purposes. See Lamour v. Peake, 544 F.3d 1317, 1322 (Fed. Cir. 2008) (citing VA Gen. Coun. Prec. 58-91 (June 17, 1991)). When a surviving spouse submits proof of marriage and meets the requirements for a deemed valid marriage, VA will accept the surviving spouse’s statement that he or she had no knowledge of an impediment to marriage, absent information to the contrary. 38 C.F.R. § 3.205(c) (2018). Consequently, status as a surviving spouse of the Veteran is a threshold requirement for DIC, death compensation, and pension benefits. The appellant seeks status as the surviving spouse on the basis of her belief that she and the Veteran were in a common law marriage, seven years after cohabiting and holding themselves out to the public as married. See October 2019 Hearing Transcript. The essential facts in this case are not in dispute. The appellant and the Veteran began cohabiting in 1991 in Kentucky, and seven years later considered themselves to be married by common law, and continually cohabited until the Veteran’s death in 2014. See October 2019 Hearing Transcript; see April 2014 VA 21-4170 Statement of Marital Relationship. The appellant and the Veteran solemnized their relationship in a religious ceremony, which they considered akin to renewing vows, at which time they were legally married in December 2013, less than one year before the Veteran’s death in January 2014. The appellant and the Veteran did not have a child together. See October 2019 Hearing Transcript. The appellant argues that she is entitled to VA death benefits on the basis that she and the Veteran believed they were married, per common law. In determining whether a marriage is valid, the law of the place where the parties resided will be applied. 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”). The appellant and the Veteran resided in Kentucky, which will recognize a valid common law marriage from another jurisdiction. The appellant suggested that she and the Veteran spent time in New Jersey, and this is where she was from, and that common law marriage was accepted there. See October 2019 Hearing Transcript. Nevertheless, New Jersey deemed common law marriages since 1939 to be invalid. Accordingly, even if the appellant lived with the Veteran and they held themselves out as married in Kentucky and/or New Jersey, they could not have been married by common law in Kentucky or New Jersey. Pendleton v. Pendleton, 531 S.W.2d 507, 509-510 (Ky. 1976) (stating that “in this state [Kentucky] there is no such thing as a common-marriage”); N.J. Stat. Ann. § 37:1-10. The Board finds that considering the ceremonial 2013 marriage, the competent and credible evidence shows the Veteran and the appellant were not legally married for more than one year prior to his death and did not bear a child together. Additionally, they married more than 40 years after service and well after the delimiting date for Vietnam era Veterans of May 8, 1985. There is no allegation or suggestion in the evidence of record disputing these facts. Nevertheless, considering the appellant’s claims regarding her common law marriage, the Board must determine whether the appellant and the Veteran’s relationship can still be recognized as a valid marriage for VA purposes pursuant to 38 C.F.R. § 3.52. Despite the legal impediment to common law marriage in Kentucky, the Board acknowledges that there is sufficient evidence to find that the appellant and the Veteran continuously lived together for at least a year immediately preceding the Veteran’s death, and that they were considered to be husband and wife by friends and family. See March 2014 VA 21-4138 Statement in Support of Claim. The appellant has repeatedly competently and credibly explained that she and the Veteran considered themselves to be in a common law marriage after they cohabited for seven years, and that their 2013 marriage ceremony was meant as a religious solemnization, akin to renewing vows. See October 2019 Hearing Transcript; see February 2014 Correspondence; see April 2016 Form 9. As such, when the Veteran stated they were in a common law marriage after they cohabited for seven years, the appellant believed that they were married under common law. The appellant has not claimed otherwise, has not presented any evidence to indicate otherwise, and has continued to attest to her belief that she and the Veteran were in a common law marriage. As such, for VA purposes, the appellant’s common law marriage existed for more than a year prior to the Veteran’s death, was entered into by the appellant without knowledge of the impediment, was evidenced by continual cohabitation until the death of the Veteran, and finally, no claim has been filed by a legal surviving spouse found entitled to accrued benefits. Therefore, the Board finds that the appellant’s attempted marriage to the Veteran is deemed valid. Accordingly, where the marriage is deemed valid according to 38 C.F.R. § 3.52, the appellant is entitled to recognition as the Veteran’s surviving spouse for purposes of VA benefits. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barner, 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.