Citation Nr: 21062656 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 15-20 995 DATE: October 8, 2021 ORDER Recognition of the appellant as the Veteran's surviving spouse for the VA benefits purposes (to include consideration for dependency and indemnity compensation ("DIC") benefits and death pension benefits) is granted. FINDINGS OF FACT A preponderance of competent and credible evidence demonstrates that the appellant had a common law marriage with the Veteran for more than one year until the Veteran's death, and the appellant did not have knowledge of the impediment that the state of Louisiana does not recognize common law marriage. CONCLUSIONS OF LAW The criteria for recognition of the appellant as the Veteran's surviving spouse for the VA benefits purposes (to include consideration for dependency and indemnity compensation ("DIC") benefits and death pension benefits) have been met. 38 U.S.C. §§ 103, 1304; 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.54, 3.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1968 to November 1969 and January 1970 to February 1971. The Veteran passed away in September 2012, and the appellant is his surviving spouse who filed a claim for entitlement to dependency and indemnity compensation ("DIC") and death pension benefits. These matters come before the Board of Veterans' Appeals ("Board") on appeal from a December 2012 decision of the Department of Veterans Affairs ("VA") Regional Office ("RO"), denying the recognition of the appellant as the Veteran's surviving spouse for the purposes of entitlement to DIC and death pension benefits. In March 2019, the appellant testified at a Board's videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Recognition of the appellant as the Veteran's surviving spouse for the purposes of claiming entitlement to dependency and indemnity compensation ("DIC") benefits and death pension benefits. The Veteran passed away in September 2012, and as a surviving spouse the appellant filed a claim for entitlement to DIC and death pension benefits in October 2012. The appellant submitted a marriage certificate, which showed she got married to the Veteran in May 2012 in the state of Louisiana. In December 2012 decision, the RO denied the appellant's claim for entitlement to DIC and death pension benefits because she was married to the Veteran for less than one year until his death. The appellant filed a notice of disagreement in April 2013 and asserted that even though she was married to the Veteran in May 2012, four months prior to his death, she and the Veteran lived together as husband and wife since March 2005. She also asserted she was not aware that the state of Louisiana is not a common law state. In a May 2015 statement of the case, the RO continued the denial of the claim because at the time of marriage the Veteran and the appellant were domiciled in Louisiana and common law marriage is not recognized in state of Louisiana. The appellant timely appealed the denial of the claim to the Board. Thus, the question before the Board is whether the appellant could be considered the Veteran's "surviving spouse" for VA benefits purposes. Under 38 C.F.R. § 3.54(a), death pension may be paid to a surviving spouse who was married to the veteran: (1) one year or more prior to the veteran's death, or (2) for any period of time if a child was born of the marriage, or was born to them before the marriage, or (3) prior to the applicable delimiting dates, as follows: (i) Civil War June 27, 1905 (ii) Indian wars March 4, 1917 (iii) Spanish-American War January 1, 1938 (iv) Mexican border period and World War I December 14, 1944 (v) World War II January 1, 1957 (vi) Korean conflict February 1, 1965 (vii) Vietnam era May 8, 1985 (viii) Persian Gulf War January 1, 2001. 38 C.F.R. § 3.54(a), DIC benefits may be paid to the surviving spouse of a veteran who died on or after January 1, 1957, who was married to the veteran: (1) before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated, or (2) for 1 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). A "surviving spouse" is defined as a person whose marriage to the veteran was 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; and (1) who was the spouse of the veteran at the time of the veteran's death; and (2) 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 (3) 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 out or herself out openly to the public to be the spouse of such other person. 38 C.F.R. §§ 3.1(j), 3.50. 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 if: (a) the marriage occurred 1 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 and (b) the claimant entered into the marriage without knowledge of the impediment, and (c) the claimant cohabited with the veteran continuously from the date of marriage to the date of his or her death, 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 U.S.C. § 103(a); 38 C.F.R. § 3.52. Under the relevant regulation, "the claimant's signed statement that he or she had no knowledge of an impediment to the marriage to the veteran will be accepted, in the absence of information to the contrary, as proof of that fact." 38 C.F.R. § 3.205(c). In Lamour v. Peake, the Court referred to the VA General Counsel Opinion, VA Op. Gen. Counsel Prec. 58-91, at 5 (June 17, 1991), and held that "the requirement of a marriage ceremony by a jurisdiction which does not recognize common-law marriage constitutes a "legal impediment" to such a marriage for purposes of 38 U.S.C. § 103(a)." Lamour v. Peake, 544 F.3d 1317, 1322 (2008). Turning to the evidence of record, at the March 2019 Board hearing, the appellant testified under oath that she started living with the Veteran since March 2005 in a rented house, in the state of Louisiana, where the community recognized them as husband and wife. She also testified that she did not have the knowledge that the state of Louisiana does not recognize common law marriage. The Board finds this testimony acceptable and credible, regarding the fact that the appellant did not have the knowledge that the Louisiana does not recognize common law marriage. In regard to the duration of common law marriage between the Veteran and the appellant, there is competent and credible evidence, which demonstrates that the Veteran and the appellant were considered as husband and wife by the community for many years. In this regard, the Veteran's mother, Veteran's sister, church pastor, and the Veteran's landlord provided written statements in March 2013 that reflect that the Veteran and the appellant were living together since 2005 until the Veteran's death in September 2012. The pastor indicated that he had believed them to be husband and wife. Also, there is evidence in the record that shows that the Veteran and the appellant had a joint bank account, which was opened in March 2006. The Veteran's marriage to the appellant was his third marriage. Previously in a January 2003 correspondence, the Veteran stated that he was separated from his wife (the second wife) in January 2003 and decided not to reunite as husband and wife and requested VA to remove her as dependent from his benefits. Consequently, the Board finds that there is a preponderance of competent and credible evidence, which demonstrates that the appellant had a common law marriage with the Veteran for more than one year prior to the Veteran's death, and that the appellant did not have the knowledge that the state of Louisiana does not recognize common law marriage. Hence, recognition of the appellant as the Veteran's surviving spouse for the purposes of claiming entitlement to death pension and DIC benefits is granted. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.