Citation Nr: 20008392 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 16-02 459 DATE: January 31, 2020 ORDER Entitlement to recognition of the Appellant as the surviving spouse of the Veteran for the purpose of establishing entitlement to VA death benefits is denied. FINDINGS OF FACT 1. The Veteran and the Appellant were married on October [REDACTED], 2012 and had no children together. 2. The Veteran died on August [REDACTED], 2013. 3. The Appellant and the Veteran were married for less than one year prior to the Veteran’s death. 4. Common law marriage is not recognized in Arizona, and the establishment of a marital relationship for VA purposes prior to the date of their October [REDACTED], 2012, marriage cannot otherwise be established. CONCLUSION OF LAW The criteria for recognition of the Appellant as the Veteran’s surviving spouse for the purpose of VA death benefits have not been met. 38 U.S.C. §§ 101, 103, 1102, 1304, 1310, 1311, 1541; 38 C.F.R. §§ 3.1 (j), 3.50, 3.52, 3.53, 3.54, 3.205. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from August 1971 to July 1972. The Veteran died on August [REDACTED], 2013. The Veteran and the Appellant were legally married on October [REDACTED], 2012, and she seeks recognition as his surviving spouse for VA death benefits. The Appellant testified at a November 2019 hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the evidentiary record. Entitlement to recognition of the Appellant as the surviving spouse of the Veteran for the purpose of establishing entitlement to VA death benefits. A January 2014 rating decision granted service connection for the Veteran’s cause of death. A VA decision issued in April 2014 denied the Appellant’s claim for dependency and indemnity compensation (DIC) because she did not meet the legal requirements to be considered the Veteran’s surviving spouse for the purpose of receiving VA death benefits. This appeal ensued. The Appellant contends that, despite the fact that she and the Veteran were not married for a year prior to his death, she should be recognized as the Veteran’s surviving spouse for the purposes of entitlement to VA death benefits. The essential facts in this case are not in dispute. The Appellant and the Veteran were married on October [REDACTED], 2012, and the Veteran died on August [REDACTED], 2013. At the November 2019 Board hearing the Appellant testified that she and the Veteran met in 2008 and moved in together after the Veteran was released from treatment at the VA healthcare facility. The Appellant stated that she became the Veteran’s caregiver and then they decided to get married. Therefore, their relationship should be considered as if they had been married for more than the statutorily required one-year period. DIC and death pension benefits may be paid to the surviving spouse of a Veteran in certain circumstances. 38 U.S.C. §§ 1310, 1541(a). Except as provided in 38 C.F.R. § 3.52, the term “surviving spouse” means a person of the opposite sex whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1 (j) and who was the spouse of the Veteran at the time of the Veteran’s death and: (1) who lived with the Veteran continuously from the date of marriage to the date of the Veteran’s death except where there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse; and (2) except as provided in § 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 C.F.R. § 3.50 (b). When the veteran dies, his or her surviving spouse may be eligible to VA death benefits, to include DIC benefits, death compensation, and death pension. 38 U.S.C. §§ 1121, 1310, 1541; 38 C.F.R. § 3.50 (a). VA DIC benefits are payable to a surviving spouse who was married to a 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). 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). 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 the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. § 103 (c); 38 C.F.R. § 3.1 (j). The State of Arizona, the state in which the Appellant and the Veteran resided together, does not recognize common-law marriages created within the state. Arizona Revised Statutes (A.R.S.) Marital and Domestic Relations A.R.S. § 25-111. Where an attempted marriage of a claimant to a Veteran was invalid by reason of a legal impediment, the marriage can nevertheless be deemed valid if: (a) the purported marriage occurred 1 year or more before the Veteran died (or at any time if a child was born to them before or during the marriage); (b) the claimant entered into the purported marriage with no knowledge of the legal impediment; (c) the claimant lived with the Veteran continuously from the date of marriage to the date of death; and (d) no claim has been filed by a legal surviving spouse who has been found to be entitled to gratuitous VA benefits. 38 C.F.R. § 3.52. In this case, the facts do not demonstrate that the Appellant satisfies the requirement to be recognized as the Veteran’s surviving spouse for VA purposes. Initially, the Board notes that the Veteran and the Appellant married in October 2012, more than fifteen years after the Veteran’s discharge from service in July 1972. Additionally, the Veteran and the Appellant were married for just under eleven months prior to his death, thus, less than one year. Further, the Appellant stated at the November 2019 Board hearing that no children were born of their marriage. Thus, the marriage between the Appellant and the Veteran does not meet the requirements of 38 C.F.R. § 3.54. In support of her claim to overcome this bar to eligibility, the Appellant has contended that she and the Veteran were together and held themselves out has a married couple as early as July 30, 2012. Although they did not have biological children together, the Veteran treated her children with compassion and she took care of him until the day he died, and they loved each other. The Appellant also submitted numerous statements from family and friends that stated they witnessed how much the Veteran and Appellant loved each other and the marriage nuptials. However, none of these statements, purport to show that the Veteran and the Appellant believed they were legally married prior to October 2012. Rather, they demonstrate that they did not believe themselves to be married prior to their October 2012 wedding. The Board finds that the preponderance of the evidence of record is against the Appellant’s claim that she is entitled to recognition as the surviving spouse of the Veteran for the purpose of receiving VA death benefits. 38 U.S.C. § 103; 38 C.F.R. §§ 3.1 (j), 3.50, 3.52, 3.54. The Appellant and the Veteran were not legally married for at least one year prior to the Veteran’s death on August [REDACTED], 2013, there is no evidence of record showing that the Appellant and the Veteran believed themselves to be married prior to their October 2012 marriage, and there is no basis upon which to find that a common law marriage between the Appellant and the Veteran may be “deemed valid” under 38 U.S.C. § 103 and 38 C.F.R. §§ 3.52, 3.205. 38 C.F.R. § 3.1 (j). Therefore, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (Continued on the next page)   The Board has carefully reviewed the Appellant’s arguments, and the law has been considered in the most favorable light possible. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that “no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.” Smith (Edward F.) v. Derwinski, 2 Vet. App. 429 (1992). While the Board is sympathetic to the Appellant’s circumstances, the Board finds that the weight of the evidence is against a finding that the Appellant is the Veteran’s surviving spouse for VA DIC benefits purposes. Therefore, the question of entitlement to DIC benefits is without legal merit and must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDuffie, Associate 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.