Citation Nr: 20022071 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 19-35 740 DATE: March 30, 2020 ORDER The claim of entitlement to recognition as the Veteran's spouse for the purposes of death and indemnity compensation (DIC) benefits is denied. FINDINGS OF FACT 1. The appellant was married to the Veteran on September [REDACTED], 1989 until they divorced in July [REDACTED], 2005. 2. The Veteran and the appellant did not obtain another marriage license as required by the law of their residences after the legal divorce decree. CONCLUSION OF LAW The criteria for entitlement to recognition of the appellant as the Veteran’s surviving spouse for purposes of DIC benefits have not been met. 38 U.S.C. §§ 103, 1102, 1304, 1310, 1311, 1541; 38 C.F.R. §§ 3.1 (j), 3.50, 3.52, 3.53, 3.54, 3.205, 3.206. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 until June 1971. He died on June [REDACTED], 2018. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 determination issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. The claim of entitlement to recognition as the Veteran’s spouse for the purposes of death and indemnity compensation (DIC) benefits is denied. The appellant is not entitled to recognition as a surviving spouse for the purposes of death and indemnity compensation (DIC). The appellant seeks entitlement to DIC benefits. By decision dated September 2018, the appellant was initially denied on the basis that she did not provide the necessary documents to process the claim for benefit. The September 2019 statement of the case (SOC) held that the appellant could not be recognized as the surviving spouse of the Veteran for VA benefit purposes. When a Veteran passes away, his or her surviving spouse may be eligible to receive VA death benefits, to include Dependency and Indemnity Compensation (DIC) benefits, death compensation, and death pension. See 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 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). Death pension is available to the “surviving spouse” of a Veteran because of his or her nonservice-connected death, as long as the Veteran served for the required period of time during wartime subject to certain income limitations. See 38 U.S.C. §§ 101, 1541 (2012); 38 C.F.R. §§ 3.23, 3.3 (2017). Finally, accrued benefits, or benefits to which a beneficiary was entitled at his death, will be paid to a “surviving spouse” as provided by law. 38 U.S.C. § 5121 (a) (2012); 38 C.F.R. § 3.1000 (a), (d) (2017). “Surviving spouse” status is a threshold requirement for VA death benefits to include DIC benefits. The appellant has the burden to show status as a “surviving spouse” by a preponderance of the evidence, in order to have standing. See Colon v. Brown, 9 Vet. App. 104, 107-08 (1996). The term “surviving spouse” means a person (1) whose marriage to the veteran was valid under the law of the place of residence at the time of the marriage or when the right to benefits accrued; (2) who was the spouse of a 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 the veteran’s death (i.e. continuous cohabitation); (4) and who, except as provided in 38 C.F.R. § 3.55, has not remarried or has not since the death of the veteran (and after September 19, 1962) lived with another person and held himself or herself out openly to the public to be the spouse of such other person. See 38 U.S.C. § 101 (3); 38 C.F.R. § 3.50 (b). Under 38 C.F.R. § 3.50 (a), a spouse is a person whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1 (j). 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 laws 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); Hopkins v. Nicholson, 19 Vet. App. 165, 169 (2005). Under 38 C.F.R. § 3.1 (j), a marriage must be 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 U.S.C. § 103 (a). In this case, neither the state of Arkansas, the state where the Veteran resided when the benefits accrued and died, nor the state of Arizona, another state where the Veteran resided while receiving VA benefits, recognizes common law marriage. See A.R.S. § 25-111 (Arizona statute on marriage); Ark. Code Ann. §9-11-201 (Arkansas statute on marriage). The record indicates and the appellant concedes that the appellant and the Veteran were married in September 1989 and divorced in July 2005. The appellant’s claim was denied on the basis that the Veteran and the appellant had divorced and were still divorced at the time of the Veteran’s death, and that the divorce was a bar to eligibility for status as the Veteran’s surviving spouse, regardless of whether they resided together after the divorce. The VA records reflect that the Veteran acknowledged the divorce. See Vocational Rehabilitation records received in March 2018. The Veteran’s applications for compensation all reflect that he resided in Arkansas and some of his VA treatment records reflect that he had also resided in Arizona. The appellant’s marriage certificate and divorce decree also reflect that she was married in the Arkansas and divorced in Arkansas. Unfortunately, the states of Arkansas and Arizona do not recognize common law marriage; both states require a marriage license to be recognized as married under law. The appellant stated that she did not know that she needed to have a license to be married under law and submitted two lay statements by her daughter and friend who witnessed that even after the divorce, they lived together until the Veteran’s death. Therefore, the appellant contends that she meets the elements of common law marriage. Despite the addition of the lay statements, the evidence does not show that the 2004 divorce was invalid or that she remarried anytime thereafter to be considered legally married to the Veteran at the time of his death. The Veteran and the appellant did not obtain another marriage license after the divorce under the state law of Arkansas or Arizona or any other state. Furthermore, the records do not reflect that they resided in a state where common law marriage was recognized. See August 2018 Statement of Marital Relationship. Consequently, the appellant’s divorce from the Veteran, a fact that is undisputed in this case, bars her from eligibility for status as his surviving spouse. 38 U.S.C. § 101 (3) (“surviving spouse means...a person... who was the spouse of a veteran at the time of the veteran’s death”); 38 C.F.R. § 3.50 (b)(2); see Marrero v. Gober, 14 Vet. App. 80, 82 (2000) (per curiam order) (holding that the appellant was not the veteran’s spouse because they divorced). The Board is sympathetic to the appellant as she helped with the Veteran’s funeral expenses, and the record reflects that the Veteran listed the appellant as his health care agent and supported the Veteran prior to his death. However, to the extent that the appellant is asserting that they were engaged in a common-law marriage after the legal divorce decree, common law marriage is not recognized in Arkansas or Arizona, places where the Veteran resided many years prior to his death. Therefore, there is no legal basis upon which the claimed death benefits may be awarded, and the claim is denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As the appellant is not a qualified beneficiary for DIC purposes, the issue of whether the Veteran’s cause of death is entitled to service connection does not require further discussion by the Board. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee, 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.