Citation Nr: 20030129 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 16-17 484 DATE: April 29, 2020 ORDER Recognition of the Appellant as the Veteran’s surviving spouse for purposes of dependency and indemnity compensation is denied. FINDING OF FACT 1. The Veteran and the Appellant married in accordance with Nevada state law on June [REDACTED], 2013. 2. The Veteran died on February [REDACTED], 2014. 3. The Veteran and the Appellant began living together on January [REDACTED], 2013. 4. The state of Nevada, where the Veteran and Appellant lived for the entirety of the relevant period, does not recognize common law marriage. 5. The Appellant, despite being afforded ample time, has not indicated that she was unaware of this legal impediment to a common law marriage. CONCLUSION OF LAW The Appellant may not be recognized as the surviving spouse of the Veteran for the purpose of entitlement to VA benefits. 38 U.S.C. §§ 101, 103, 5107; 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.102. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to February 1971. He died on February [REDACTED], 2014. 1. Whether the Appellant may qualify for dependency and indemnity compensation as the Veteran's surviving spouse The Appellant claims as the Veteran’s surviving spouse for compensation purposes. There are three critical dates of record, which are not in dispute: the Veteran and the Appellant began cohabitating on January [REDACTED], 2013 and according to the Appellant were living as husband and wife; the Veteran and the Appellant were married under the laws of the state of Nevada on June [REDACTED], 2013; and the Veteran passed away on February [REDACTED], 2014. When a Veteran dies, his or her surviving spouse may be eligible for VA death benefits, to include dependency and indemnity compensation (DIC), death compensation, and death pension. See 38 U.S.C. §§ 1121, 1310, 1541; 38 C.F.R. § 3.50 (a). Consequently, “surviving spouse” status is a threshold requirement for both DIC and death pension benefits. For a person to establish recognition as a surviving spouse of a deceased Veteran, there must be evidence of a valid marriage to the Veteran under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). A surviving spouse for VA purposes is defined as a person whose marriage to a 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 fault of the spouse; and (2) has not remarried or has not since the death of the Veteran lived with another person and held himself/herself out openly to the public to be the spouse of such other person. See 38 C.F.R. §§ 3.50 (b), 3.53. The validity of a marriage is determined based upon the law of the jurisdiction where the parties resided at the time of marriage or when the rights to benefits accrued. 38 U.S.C. § 103 (c); 38 C.F.R. § 3.1 (j). A valid marriage may be established by various types of documentary evidence together with the claimant’s certified statement concerning the date, place and circumstances of dissolution of any prior marriage, provided that such facts, if they were to be corroborated by record evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205. Critical here are the requirements of section 3.54 for a surviving spouse to qualify for DIC compensation. The potentially applicable issue is under section 3.54(b), whether the Appellant was married to the Veteran for one year or more prior to his death. If the Veteran and Appellant were married for less than one year prior to his death, DIC compensation is not available. As the record indicates that the date of the marriage certificate is June [REDACTED], 2013 (within one year of the Veteran’s death), the only possibility is the establishment of a common law marriage prior to one year from the Veteran’s death (February [REDACTED], 2013). As noted in the previous AOJ decisions, Nevada did not (and does not) recognize common law marriage. See Nev. Rev. Stat. § 122.010 (“no common-law marriages after March 29, 1943”). However, section 3.52 provides a potential exception where VA would recognize “an attempted marriage” for VA compensation purposes if the Appellant “entered into the marriage without knowledge of the impediment” (among other requirements that appear to have been met). 38 C.F.R. § 3.52(b). In short, if the Appellant believed that she and the Veteran were entering into a common law marriage on January [REDACTED], 2013 or any time prior to February [REDACTED], 2013, then compensation may be available. VA sent a May 2016 development letter to the Appellant requesting that she make a statement as to whether she knew that Nevada did not recognize common law marriage at the time relevant to her claim. She did not respond. In an April 2020 Informal Hearing Presentation, the Appellant’s representative indicated that the development letter did not inform that Appellant of how much time she had to respond, and as a result, a new letter should be sent to provide the Appellant with the opportunity to respond. The Board notes that the Representative is mistaken, the letter does in fact inform the Appellant that she had up to one year to respond. The Appellant failed to respond despite a clear explanation of the evidence needed and the timeframe in which to provide it. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the facts are not in dispute. The Veteran and Appellant began living together on January [REDACTED], 2013. They married under the laws of Nevada, their state of residence, on June [REDACTED], 2013. The Veteran passed away on February [REDACTED], 2014, within one year of the legal marriage of the Veteran and Appellant. Despite the Appellant’s assertions that they lived together as man and wife for the entirety of their time cohabitating, the state of Nevada does not recognize common law marriage and the Appellant has failed to indicate that she was unaware of the legal impediment to common law marriage. In addition, the Board notes the Appellant’s own assertion on the VA Form 21-4170, in section 8: “What Did You Agree Your Relationship Would Be At The Time You Began Living Together” – she responded “that we were going to marry.” This suggests an acknowledgement that the Veteran and the Appellant were not married at the time of cohabitation, but rather anticipated marriage in the future. Furthermore, even if the Appellant were to assert that she was unaware of the legal impediment to common law marriage, she has not submitted convincing documentary evidence, such as joint banks accounts or other such records, to show that she and the Veteran were living as man and wife prior to February [REDACTED], 2013 (one year prior to the Veteran’s death). 38 C.F.R. § 3.205. Regardless, the evidence is clear. The Veteran and the Appellant were married for less than a year at the time of his death. 38 C.F.R. § 3.54(b). Their state of residence, Nevada, did not recognize common law marriage and the Appellant has not indicated that she was unaware of this legal impediment. 38 C.F.R. § 3.52(b). Even if she had indicated that she was unaware of this impediment, the Appellant has provided no documentary evidence supporting her assertion and the statements from two friends that they were living as man and wife one year prior to the Veteran’s death. As such, the Appellant may not be recognized as the surviving spouse for DIC compensation purposes. The Board is deeply sympathetic to the Appellant’s loss of her husband and acknowledges his wartime service. However, the Board is bound by the statutes enacted by Congress and as a result of their application, must find that a preponderance of the evidence is against the Appellant’s claim. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. R. Stephens, 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.