Citation Nr: 20046516 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 17-02 645 DATE: July 13, 2020 ORDER The Appellant may not be recognized as the Veteran’s surviving spouse for Department of Veterans Affairs (VA) purposes and the appeal is denied. FINDINGS OF FACT 1. The Appellant reported that she cohabitated with the Veteran from July 1983 to September 2009 and was aware at the beginning of the period that she and the Veteran were not married. 2. The Veteran died in September 2009. 3. The Appellant has acknowledged that she was aware that the Veteran was married to M. B., from February 1948 to September 2008 and to E. C., from April 1975 to his death in September 2009. CONCLUSION OF LAW The Appellant may not be recognized as the Veteran’s surviving spouse for VA purposes. 38 U.S.C. §§ 101(3), 5107; 38 C.F.R. § 3.50(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had recognized guerilla service from May 7, 1945, to December 3, 1945. The Veteran died in September 2009. The Appellant appeared at an April 2018 hearing before the undersigned Veterans Law Judge at the Manila, the Republic of the Philippines, Regional Office. A hearing transcript is of record. Recognition as Surviving Spouse for VA Purposes The Appellant asserts that she should be considered as the Veteran’s surviving spouse for VA purposes as they lived together and held themselves out to the community as husband and wife. The term “surviving spouse” for VA purposes means a person who was the spouse of a veteran at the time of the veteran’s death and 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 who has not remarried. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). 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. 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 the evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205(a). Where a surviving spouse has submitted proof of a marriage in accordance with the aforementioned and also meets the requirements of 38 C.F.R. § 3.52, the claimant’s signed statement that he or she had no knowledge of an impediment to the marriage will be accepted, in the absence of information to the contrary, as proof of the marriage. 38 C.F.R. § 3.205(c). The provisions of 38 C.F.R. § 3.52 provide criteria for establishing a valid marriage for VA purposes in cases where the marriage is not valid under state law. Specifically, where an attempted marriage of a claimant to the veteran was invalid by reason of a legal impediment, the marriage will nevertheless be deemed valid for VA purposes if: (a) the marriage occurred one or more years 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; (b) the claimant entered into the marriage without knowledge of the impediment; (c) the claimant cohabited with the Veteran continuously from the date of marriage to the date of his or her death as outlined in 38 C.F.R. § 3.53; and (d) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the Veteran’s death. The claimant needs to meet all of the enumerated requirements in order for the marriage to be deemed valid for VA purposes. In a January 2020 Statement of Marital Relationship, VA Form 21-4170, the Appellant stated that: she had cohabitated with the Veteran from July 1983 to his death in September 2009; she entered the “continuous cohabitational arrangement with [the Veteran] in July of 1983, I did so with the full belief, understanding and agreement that we would later marry and remain together as husband and wife;” and the Veteran had been married to M. B., from February 1948 to September 2008 and to E. C., from April 1975 to his death in September 2009. The Appellant certified that the facts she related were “true and accurate to the best of my knowledge and belief.” In a January 2020 Supporting Statement Regarding Marriage, VA Form 21-4171, the Appellant’s sister in law indicates that: the Appellant had cohabitated with the Veteran from July 1983 to his death in September 2009; the Veteran and the Appellant had entered a “common-law marital bond in June 2007;” and the Veteran had been married to M. B., from February 1948 to September 2008 and to E. C., from April 1975 to his death in September 2009. The Appellant acknowledges that she and the Veteran did not consider themselves to be married when they began their period of cohabitation in 1983 and the Veteran was married to other individuals from July 1983 until his death in September 2009. Her statements were confirmed by statements from her sister in law. Therefore, the Appellant may not be considered as the Veteran’s surviving spouse for VA purposes because she was not the spouse of the Veteran at the time of his death as she was aware that he was married to another individual at the start of their period of cohabitation until the time of his death. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). The law is dispositive of the issue on appeal, and the Appellant’s claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement). Although the Board of Veterans’ Appeals (Board) is sympathetic toward the Appellant, the Board is bound by the law. This decision is dictated by the relevant statutes and regulations. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). Based on the undisputed facts of this case, the Appellant cannot be recognized as the surviving spouse of the Veteran for purposes of establishing eligibility for VA benefits. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Hutcheson, 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.