Citation Nr: 21004917 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-05 322 DATE: January 28, 2021 ORDER Entitlement to recognition as the surviving spouse as defined by the Department of Veterans Affairs (VA) for eligibility to Dependency and Indemnity Compensation (DIC) benefits is denied. Entitlement to recognition as the surviving spouse as defined by the VA for eligibility to death pension benefits is denied. FINDINGS OF FACT 1. The Veteran and the appellant were married in February 2013 and had no children together. 2. The appellant and the Veteran were legally married for less than one year prior to the Veteran’s death in June 2013. 3. Common law marriage is not recognized in Missouri and the appellant was aware of that legal impediment; thus, the establishment of a marital relationship for VA purposes prior to the date of their February 2013 ceremonial marriage cannot otherwise be established. CONCLUSIONS OF LAW 1. The appellant is not recognized as the Veteran’s surviving spouse for establishing entitlement to DIC benefits. 38 U.S.C. § 103; 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.54. 2. The appellant is not recognized as the Veteran’s surviving spouse for establishing entitlement to death pension benefits. 38 U.S.C. § 103; 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.54. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from June 1969 to June 1971. The Veteran died in June 2013. The appellant seeks recognition as his surviving spouse for VA death benefits. This appeal arises from a July 2013 notice decision that denied the appellant’s claim for DIC and survivor pension on the basis that she did not show eligibility as a surviving spouse. In February 2016, the appellant submitted a VA Form 21-22a (Power of Attorney form) listing Terrence J. O’Toole, attorney, as her representative. Mr. O’Toole is not accredited with VA’s Office of General for attorney representation. So, the Board issued her a notice in December 2020 informing her that her chosen representative was not accredited for representation before VA. As the appellant did not respond within 30 days of that notice, the Board finds that she wishes to represent herself and proceeds accordingly. 1. Eligibility as a claimant to DIC benefits 2. Eligibility as a claimant to death pension benefits 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. 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). Consequently, surviving spouse status is a threshold requirement for DIC and death pension. 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. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). 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). There are various methods in which a valid marriage may be established for VA benefit purposes. See 38 C.F.R. § 3.205. Significantly, the State of Missouri, the state in which the appellant and the Veteran resided together, does not recognize common law marriages created within the state. See Missouri Revised Statutes (MO Rev Stat) § 451.040 (2020). Therefore, a common law marriage between the Veteran and the appellant cannot be established under Missouri state law. Nevertheless, where an attempted marriage of a claimant to the veteran was invalid by reason of a legal impediment, the marriage will 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 (see 38 C.F.R. § 3.54 (d)); (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 § 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. 38 C.F.R. § 3.52. VAOPGCPREC 58-91. The essential facts in this case are not in dispute. The appellant and the Veteran had a marriage ceremony in February 2013 in the State of Missouri and the Veteran died in June 2013. In several statements, the appellant indicated that she and the Veteran were together for 13 years prior to their marriage and that she cared for him since he became ill in 2006. See September 2013 appellant’s statement. The Veteran and the appellant began cohabitating in approximately 2001. See id. There is no evidence, and the appellant does not contend, that any children were born from the relationship. See November 2013 appellant’s statement. The appellant also submitted numerous statements from family and friends that stated the Veteran and appellant lived together continuously since at least 2002 until the Veteran’s death and they called each other husband and wife. See November 2013 statements from D.D. (Veteran’s brother), M.G. (Veteran’s co-worker/friend/best man at 2013 wedding ceremony), N.C. (Veteran’s sister), and M.A. (appellant’s sister). It is asserted that these statements attested to the fact that throughout their at least 13-year relationship, the appellant and the Veteran were inseparable and acted like spouses. These family members and friends also testified as to how the appellant took care of the Veteran as her husband until his death in 2013. Importantly however, none of these statements purport to show that the Veteran and the appellant believed they were legally married via common law marriage prior to February 2013. That is, none of the statements assert that the claimant entered into a common law marriage without knowledge of the legal impediment that Missouri does not recognize common law marriage. In fact, in her September 2013 statement, the appellant acknowledged awareness of the legal impediment. She wrote “MO is no longer a common law state, but … I should say that we were more committed [than] if we had been married for 50 years.” While the appellant has subsequently asserted that she was not previously aware of the legal impediment, the September 2013 statement is highly probative against her later statements. The Board also notes that the record shows that the Veteran received benefits as “a single veteran without dependents.” In fact, prior to his death, neither the Veteran nor appellant asserted to VA that they were in a marital relationship. See December 2007 VA Notification Letter. Moreover, statements from M.G. and N.C. merely noted that the couple were legally married in 2013. In light of the evidence that tends to show the appellant and Veteran were aware of the legal impediment, the Board finds that the provisions of 38 C.F.R. § 3.205(c) do not apply. Accordingly, the Veteran and appellant did not have a common law marriage, their ceremonial marriage did not occur one year or more before the Veteran died, and no child was born out of the relationship between the appellant and the Veteran. Therefore, she is not deemed to be the Veteran’s surviving spouse for the purpose of establishing entitlement to VA death benefits. 38 C.F.R. §§ 3.1 (j), 3.50. 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 v. Derwinski, 2 Vet. App. 429 (1992). While the Board is truly sympathetic to the appellant’s circumstances, it is the law, and not the facts, that is dispositive of the claims as the appellant does not meet the legal criteria to establish status as the deceased Veteran’s surviving spouse for the purpose of VA benefits. (Continued on the next page)   The Board is left with no recourse but to deny as a matter of law the claims for DIC and death pension benefits. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.