Citation Nr: 21062865 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-63 041 DATE: October 12, 2021 ORDER Entitlement to dependency and indemnity compensation (DIC) benefits as the Veteran's surviving spouse is denied. Entitlement to death pension benefits as the Veteran's surviving spouse is denied. FINDINGS OF FACT 1. Common law marriage is not recognized in the states of California, Georgia, and Nevada, where the Appellant and the Veteran cohabitated together prior to his death, and the establishment of a marital relationship for VA purposes prior to that date cannot otherwise be established. 2. The evidence does not establish residency and/or demonstrate that the Veteran and the Appellant had a valid common law marriage in Texas, in a state whose law permits such marriage. CONCLUSIONS OF LAW 1. The criteria for entitlement to DIC benefits as the Veteran's surviving spouse have not been met. 38 U.S.C. §§ 103, 1121, 1310, 1541, 5107; 38 C.F.R. §§ 3.1, 3.50, 3.102, 3.205. 2. The criteria for entitlement to death pension benefits as the Veteran's surviving spouse have not been met. 38 U.S.C. §§ 103, 1121, 1310, 1541, 5107; 38 C.F.R. §§ 3.1, 3.50, 3.102, 3.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1952 to September 1957; from January 1959 to August 1960; and from November 1961 to February 1965. The Veteran died in December 2015. The Appellant seeks recognition as his surviving spouse for purposes of establishing entitlement to DIC and death pension benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 decision. In March 2018, the Appellant presented testimony before the Board. In February 2019, the Board denied the Appellant's claims and she appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC). In a June 2020 Memorandum Decision, the CAVC upheld the Board's denial of entitlement to accrued benefits, and set aside the Board's decision addressing the Appellant's status as the Veteran's surviving spouse for purposes of establishing entitlement to DIC and death pension benefits and remanded the matters to the Board for readjudication. The matter was remanded by the Board in June 2021. The Board is aware the Appellant submitted an authorization for release of information to the RO in August 2021; however, medical records related to the Veteran's death are not pertinent to the issue of recognition as the Veteran's surviving spouse. Any defect in assistance is not prejudicial to the Appellant as she has not met the threshold requirement as a properly recognized claimant and further remand is not warranted. 1. Entitlement to DIC 2. Entitlement to survivor pension benefits The Appellant filed a claim seeking entitlement to DIC and survivor pension benefits in March 2016. Her claims were denied in April 2016 because the Appellant was not recognized as the Veteran's surviving spouse. The Appellant filed a timely notice of disagreement and this appeal ensued. When a veteran dies, his or her surviving spouse may be eligible for VA death benefits. See 38 U.S.C. §§ 101 (3), 103(c), 1541; 38 C.F.R. §§ 3.3 (b)(3), 3.50(a), 3.54. VA 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 date. 38 U.S.C. §§ 1102, 1304, 1532, 1534, 1536, 1541; 38 C.F.R. § 3.54 (a). With respect to the latter, the applicable delimiting date in the instant case is May 8, 1985, based on the Veteran's active duty service during the Vietnam era. VA death compensation and VA DIC may be paid to a surviving spouse who was married to the veteran (1) before the expiration of 15 years after termination of the period of service in which the injury or disease which caused 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. §§ 1102, 1304; 38 C.F.R. § 3.54 (b), (c). Consequently, "surviving spouse" status is a threshold requirement for DIC, death pension, and accrued benefits. 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 of the opposite sex 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. 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); see Sanders v. Brown, 6 Vet. App. 17 (1993). 38 C.F.R. § 3.205 provides that marriage may established by one of several types of evidence including a copy of the public record of marriage, an official report from the service department as to a marriage which occurred while the veteran was in service, or an affidavit of the clergyman or magistrate who officiated. 38 C.F.R. § 3.205 (a). One claiming to be the spouse of a veteran has the burden to come forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). Applying VA law to the facts of the present case as demonstrated by the evidence of record, the Board concludes the Appellant is not entitled to the payment of VA DIC or death benefits as the Veteran's surviving spouse. First, the evidence of record does not establish that the Appellant and the Veteran were ever legally married. Rather, the Appellant maintains that she and the Veteran lived together for approximately thirty years in a common law marriage and therefore she should be considered his surviving spouse for VA survivor benefits purposes. The Appellant has provided evidence that she and the Veteran lived together in California, as well as Nevada, where they resided at the time of the Veteran's death. She has also testified at her hearing that they were temporarily based in both Georgia and Texas, although she stated that they only stayed in either location for several months, and has not provided any evidence of such residency, such as an address or lease agreement. California, Georgia, and Nevada explicitly do not recognize the creation of common-law marriages. In fact, Nevada, the Jurisdiction where the Veteran died, and therefore where the benefits accrued, has explicitly outlawed the recognition of any common-law marriage created after March 29, 1943, finding that marriage is a civil contract and requires explicit consent of the parties followed by solemnization of the marriage. See NEV. REV. STAT. § 122.101; see also GA. CODE ANN. § 19-3-1.1; CA. FAM CODE § 300. Texas, in certain circumstances, will recognize the creation of a common law marriage. However, the parties must (a) agreed to be married; (b) after the agreement they live together in this state as husband and wife; and (c) represent to others that they were married. See TEX. FAM. CODE ANN. § 2.401. While the Appellant testified at her hearing that she and the Veteran briefly lived in Texas, she has not provided any proof of such residency, to include an address or location where they lived. There is also no evidence in the record that during that time in Texas she and the Veteran entered into an agreement to be married or that they held themselves out as man and wife during that time. Given the evidence available, the Board finds that the Appellant has not met the threshold to prove such a marriage was ever created during her reported time in Texas. VA's General Counsel has held in a precedent opinion that an appellant's lack of knowledge that a common law marriage was not recognized by the appropriate jurisdiction is a legal impediment that does not necessarily bar recognition of the marriage for VA purposes. VAOPGCPREC 58- 91 (June 17, 1991). This is because under 38 C.F.R. § 3.52, the common law marriage could be "deemed valid" on the theory that the surviving spouse could have entered into the purported common-law marriage without knowledge of the fact that there was an impediment to the marriage. Colon v. Brown, 9 Vet. App. 104 (1996). The impediment referred to here would be the jurisdiction's non-recognition of a common-law marriage. An attempted marriage will be "deemed valid" if: (a) the attempted marriage occurred one year or more before the Veteran died; 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 the attempted marriage until his death; and (d) no other claimant has been found to be entitled to gratuitous VA death benefits. 38 U.S.C. § 103 (a); 38 C.F.R. § 3.52. In the instant case, the Board finds the preponderance of the evidence is against a finding that the Appellant and the Veteran were "deemed" married pursuant to 38 C.F.R. § 3.52. In order for the Appellant to be successful under the foregoing "deemed valid" theory, the evidence must satisfy the threshold criteria for a common law marriage superimposed by 38 C.F.R. § 3.205 (a)(6); namely, 1) that there was an agreement between the Appellant and the Veteran to be married; 2) that there was cohabitation between the parties; and 3) that the parties held themselves out as husband and wife and were generally accepted as such in the communities in which they lived. Throughout the appeal, the Appellant has stated that she and the Veteran were in a committed relationship in excess of 30 years at the time of his death. The evidence of record, however, does not show that either party ever actually held themselves out as husband and wife. In an April 2016 VA Form 21-4170, Statement of Marital Relationship, she said that the Veteran and she referred to "[our] selves as husband and wife." There is no indication that they told others they were husband and wife. The Appellant's daughter submitted a statement in support of marriage and simply indicated that she considered her mother and the Veteran to be husband and wife because they were in a relationship since she was seven. While the Appellant has testified that she used his last name, there is no evidence that she legally took the Veteran's name. She has submitted no documentation, included purported rental agreements, showing that she used the Veteran's last name. In fact, while she submitted an application for VA for survivor benefits in February 2016 showing her last name as "Gipson/Fisher," in March 2016 she simply listed "Gipson." The Veteran's death certificate lists him as widowed from a prior marriage. A surviving spouse, namely the Appellant, was not listed. The Board finds this notable because the information for the death certificate was provided by one of the Veteran's daughters, LF. The Board is aware that another of the Veteran's daughter's, DW, provided a statement that the Appellant and Veteran "were together as husband and wife" for 35 years. However, the evidence submitted by the Veteran himself during his lifetime, to include official correspondence to VA, does not indicate that he believed himself and the Appellant to be married under common law or otherwise, nor does it show an intent to be married. The Veteran never listed the Appellant nor sought additional dependent benefits with VA. He indicated that he was divorced on a May 1993 application for benefits. He also repeatedly indicated that he was not married. See e.g., Eligibility Verification Reports submitted in February 1994, April 2001, January 2002, and January 2003. Moreover, the Appellant testified at hearing before the Board that she and the Veteran did not marry because she did not wish to lose survivor benefits paid to her from a prior marriage. BVA Transcript at 5. Inquiries to the Social Security Administration (SSA) confirm that she is in receipt of a widow's benefit for her deceased husband. Consequently, the Board finds the evidence does not demonstrate an agreement between the Appellant and the Veteran to be married or an intent to do so prior to his death, nor does it show that the Appellant and the Veteran believed themselves to be married under common law prior to his death. In other words, there is no showing that they entered into a relationship that would have constituted a valid common law marriage even if California, Georgia, and Nevada had recognized such marriages. Cohabitation in and of itself cannot be considered an attempted marriage. The provisions of 38 C.F.R. § 3.52 are thus not applicable and the Appellant and the Veteran cannot be said to have been "deemed" married prior to his death. Hence, the Board concludes that the evidence is insufficient to establish that a deemed valid common law marriage existed. Based on the above, the Board finds the preponderance of the evidence is against the recognition of the Appellant as the surviving spouse of the Veteran for the purpose of establishing eligibility for payment of DIC and death pension benefits. 38 U.S.C. § 103; 38 C.F.R. §§ 3.1 (j), 3.50, 3.352. Therefore, the benefit- of-the-doubt doctrine does not apply, and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. L. Wallin, 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.