Citation Nr: 21070823 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 16-53 507A DATE: November 26, 2021 THE ISSUE Entitlement to recognition as the surviving spouse of the Veteran for the purpose of establishing entitlement to Department of Veterans Affairs (VA) Dependency and Indemnity Compensation (DIC) benefits. ORDER Entitlement to recognition as the surviving spouse of the Veteran for the purpose of establishing entitlement to DIC benefits is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran and appellant were ever legally married. 2. The appellant entered into the attempted marriage with the knowledge that their marriage license paperwork was expired. 3. The Veteran died in March 1994, and his death certificate shows his marital status at the time of his death was "never married." The evidence does not show that the appellant was the Veteran's spouse at the time of his death. CONCLUSION OF LAW The criteria for recognition as the Veteran's surviving spouse for purposes of entitlement to DIC benefits are not met. 38 U.S.C. §§ 103, 1121, 1310, 1541, 5107; 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.53, 3.54, 3.102, 3.205. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1965 to July 1968. The Veteran died in March 1994. The appellant is the mother of the Veteran's daughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 administrative decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA), which determined that the appellant was not entitled to DIC benefits, death compensation, death pension, and/or accrued benefits, collectively known as death benefits, based upon a finding that the appellant cannot be recognized as the surviving spouse of the Veteran. The appellant testified before the undersigned Veterans' Law Judge at a June 2021 Board video conference hearing. A transcript of the hearing has been associated with the claims file. Entitlement to recognition as the Veteran's surviving spouse for purposes of Dependency and Indemnity Compensation (DIC) benefits. The RO denied the appellant's claim on grounds that she did not meet the eligibility requirements for DIC benefits, to include the fact the appellant and the Veteran were not married at the time of the Veteran's death. DIC is payable to a veteran's surviving spouse when a Veteran dies from a service-connected disability. 38 U.S.C. §§ 1310, 1318 (2012); 38 C.F.R. § 3.5(a) (2019). To qualify as a surviving spouse, the person's marriage to the veteran must meet the requirements of either 38 C.F.R. § 3.1(j) or 38 C.F.R. § 3.52. 38 C.F.R. § 3.50(b). Under 38 C.F.R. § 3.1(j), a marriage is defined as "a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued." 38 C.F.R. § 3.1(j); 38 U.S.C. § 103(c). In VAOPGCPREC 58-91, the General Counsel of VA held that lack of residence in a jurisdiction recognizing common law marriage is not a bar to establishing a common law marriage for a surviving spouse claimant. The rationale is that the common law marriage could be "deemed valid" under 38 C.F.R. § 3.52 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. See also Colon v. Brown, 9 Vet. App. 104, 107-08 (1996). Under 38 C.F.R. § 3.52, 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 (see also 38 C.F.R. § 3.54 (d)), 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 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. See also 38 U.S.C. § 103(a). A marriage will be deemed valid if the appellant's signed statement that he or she had no knowledge of an impediment to marriage to the Veteran is accepted, in the absence of information to the contrary, as proof of that fact. 38 C.F.R. § 3.205(c). In this case, although the states of Kentucky, where the appellant claims they were married, and Tennessee, where the appellant resides, do not recognize common law marriage, 38 C.F.R. § 3.52 holds that the appellant could still demonstrate a valid common law marriage, if she can demonstrate that her common law marriage occurred more than one year before the Veteran died; that she entered into the common law relationship without knowledge of the impediment; and that she lived with the Veteran continuously from the date of the common law marriage until his death; and no claim has been filed by a legal surviving spouse. To find this common law marriage valid, the appellant need merely sign a statement finding that she had no knowledge of an impediment to marriage to the Veteran, as long as there is no evidence to the contrary. Initially, the Board notes that there is no marriage certificate associated with the record. The appellant testified that she married the Veteran in a religious ceremony at their place of residence in August 1974. See June 2021 Board hearing. In support of this contention, the appellant has submitted letters from her brother and from a neighbor who claimed to have attended the ceremony. The appellant also indicates that she and the Veteran had a child, P.W., born October 1973, and that she took the Veteran's last name from the date of marriage to the present. Historically, the Veteran denied ever being married or having children in an August 1975 Veteran's Application for Program of Eduction or Training form. Similarly, the Veteran denied ever having been married or having children in a June 1990 Application for Compensation or Pension form. In June 1991, the appellant submitted a default judgement and order in which a Kentucky district court found the Veteran was the father of P.W. and ordered the Veteran to pay child support to the appellant. The Veteran requested for P.W. to be added as a dependent child for VA purposes in July 1991. The appellant requested apportionment of the Veteran's benefits for P.W. in August 1991. In a May 1992 Notification Letter, VA granted the apportion request and identified the appellant as the Veteran's "ex-wife." In February 1992, the Veteran submitted an Improved Eligibility Verification report form and indicated that he was not presently married. A field examination conducted in February 1992 shows the Veteran reported that "he had a daughter, [P.W.], who is residing with ex-wife. Contends that he is divorced." A March 1994 DIC application form submitted by P.W. identified the veteran as "never married." The Veteran died in March 1994 and his death certificate recorded his marital status as "never married." An April 1994 VA Application for Burial Benefits completed by the executor of the Veteran's estate also indicated the Veteran was never married. VA subsequently granted the application for burial benefits for a non-service-service connected disease or injury. VA also approved P.W.'s claim for pension in May 1994. In March 2015, the appellant filed her claim for DIC benefits. The appellant stated that she married the Veteran at their home in August 1974 in Louisville, Kentucky, and that they had a child together. She also indicated that she did not continuously live with the Veteran from the date of marriage until the date of his death. The appellant explained that they separated in 1986 because of the Veteran's drinking problem. When asked if at the time of her marriage to the Veteran she was aware of any reason that the marriage might not be legally valid, she responded affirmatively, explaining that they "didn't go to the courthouse," but, instead, married at home. Along with her application for DIC benefits, the appellant submitted life insurance information which identifies the appellant as the policy's beneficiary and surviving spouse of the Veteran. The appellant also sent VA a letter explaining that she and the Veteran bought a house together as husband and wife, and that the reason she left him was his drinking and ill temper. She submitted a deed, dated July 1973 which identified her as the Veteran's wife. In May 2016 the appellant submitted a letter from the American Red Cross, in which an employee documented his unsuccessful attempts to locate any marriage license, but indicated that he was able to locate the son of the now deceased clergyman who married them. In September 2015 VA denied the appellant's claim finding she had failed to provide the requested evidence. The appellant submitted evidence of an exhaustive search for her marriage license, along with negative responses from Tennessee and Kentucky counties. Additionally, in October 2015, she submitted religious arguments against the use of marriage licenses and the illegitimacy of the State to issue such licenses, citing Christian theological doctrine. The Board, as a secular, governmental institution, is without jurisdiction to address such arguments and must follow the duly enacted laws and regulations of the United States. See U.S. CONST. amend. I; Lemon v. Kurtzman, 403 U.S. 602 (1971); Zelman v. Simmons-Harris, 536 U.S. 639 (2002). To do otherwise would violate the Establishment Clause of the First Amendment of the United States Constitution. Id. Additionally, the appellant submitted internet research on the Universal Declaration on Human Rights (UDHR). The Board observes that treaties are included in Article II and Article VI of the United States Constitution and self-executing Article II treaties have status as U.S. domestic law, however, as the Supreme Court observed in Reid v. Covert, "this Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on full parity with a treaty, and that when a statute which is subsequent time in inconsistent with a treaty, the statute to the extent of conflict renders the treaty null." 354 U.S. 1 (1957); Foster & Elam v. Neilson, 27 U.S. 2 Pet. 253 253 (1829). Additionally, the UDHR is not considered a treaty under international law, or, more importantly, the United States Constitution. See Barry E. Carter & Allen S. Weiner, International Law, 6th Edition, New York: Wolters Kluwer, 2011 (Aspen Casebook Series) at 86-87. Therefore, the Board will not discuss the implications of the UDHR upon the present case. The appellant submitted an October 2015 correspondence in which she wrote that she and the Veteran lived together in a "common-law Marriage from September of 1972 until 1974." She further explained that after their marriage ceremony, she and the Veteran "went to the court house and appl[ied] for [their] marr[iage] certificate," at which time a clerk at the court house informed them that the Veteran and appellant "let [the documents] expire." The appellant identified the clergyman who allegedly married them. She claimed she and the Veteran separated in 1976, reunited in 1981 to see each other on weekends, before they separated permanently in 1985, when the appellant claims she "found out that [her] husband was drink[ing' too much alcohol everyday" and "it got [to] be too much for [her] and [her] children." She closed by reiterating that she had taken the Veteran's last name since the marriage ceremony in 1974, never got a divorce, and that the social security card issued to her identified her by the Veteran's surname. The appellant's friend and coworker, C.G., submitted a letter in support of her appeal dated September 2015. C.G. claims to have witnessed the religious wedding ceremony. Additionally, the appellant's friend wrote that "around 1985 this marriage came to an end[;] I'm not sure why but, they went their separate ways. I felt it was very unique that they remained friends. After all they did have a beautiful daughter together, little [P.W.], such a pretty little girl." The appellant's brother, J.H, also submitted a letter in which he wrote that he knew that his sister was married to the veteran and to his knowledge never got a divorce. P.W.'s submitted birth certificate listed the appellant as her mother, but did not list a father. In November 2015 VA attempted to obtain a marriage certificate. However, VA received negative responses from County Clerks from Kentucky and Tennessee in December 2015. In a March 2016 correspondence, the appellant submitted a notice of reconsideration of the January 2016 determination that she was not a surviving spouse for VA purposes. She argued that she contacted Kentucky and Tennessee Vital Statistic Records and that they were unable to find any marriage license or divorce decree, and that therefore, she and the Veteran were still married at his death. She included correspondences from the Kentucky and Tennessee State Registrars and County Clerks to that effect. VA once again denied entitlement to DIC benefits and informed the appellant in a March 2016 notification letter. In its letter VA explained that while the appellant had submitted new evidence, such evidence still did not establish that she and the Veteran were ever legally married. In April 2016, P.W. submitted a correspondence stating that the appellant and the Veteran were married in 1973 and gave birth to her in the same year. However, this statement is contradicted by her earlier statements to VA that the Veteran was not married. The Veteran's Last Will and Testament received by VA in April 2016 named P.W. as the sole heir of his estate and did not contain mention of the appellant. The appellant submitted a letter in April 2016, again asking for reconsideration of her eligibility for DIC benefits and included an April 2016 Social Security Administration (SSA) letter noting the Veteran as the appellant's husband. In the June 2021 Board hearing, the appellant explained that she claimed not to be married to the Veteran on submitted paperwork because she felt threatened by the Veteran and felt her children would be taken away from her if he discovered she disclosed that they were married. See also November 2016 lay statement. She testified that her search for the marriage license through the son of the deceased clergyman had been fruitless but stated that her son, then six years old, had "seen Daddy give the preacher a piece of white paper, he said it was in an envelope; well, our marriage certificate was in an envelope." The appellant also reiterated in her testimony that the reason she and the Veteran did not cohabitate was due to his ill temper and abuse. See 38 C.F.R. § 3.50(b)(1). The appellant, through her representative, also argues in the October 2021 Appellate Brief that because they share a child and lived together as man and wife, that she is entitled to recognition as a surviving spouse. See 38 U.S.C. § 1304. Unfortunately, the exception cited by the appellant applies only to couples who are separated and therefore do not cohabitate. And, as indicated above, a surviving spouse is defined by law as a person who was legally married to the Veteran at the time of the Veteran's death. See 38 U.S.C. § 101(3) and 38 C.F.R. § 3.50(b) (requiring, among other things, that a surviving spouse be "the spouse of the veteran at the time of the veteran's death"). Additionally, the argument furthered by the Veteran's representative in the October 2021 Appellate Brief that because the Veteran and appellant had a child together, she is entitled to recognition as surviving spouse, is based on an incomplete reading of the laws and regulations. To wit, while the Veteran and Appellant did have a child together, 38 C.F.R. § 3.52 also requires that the claimant entered into the legally invalid marriage without knowledge of the legal impediment, and that the Veteran and claimant cohabitate continuously from the date of marriage to the date of his death. 38 C.F.R. § 3.52 (b, c). As noted above, the appellant indicated in the March 2015 DIC application that she was aware of a reason that the marriage might not be legally valid. Although she testified that she and the Veteran would visit each other up until his death, including the final weeks before his death, the appellant does not dispute that she and the Veteran were separated for many years before his death in March 1992. See June 2021 Board hearing. Their child acknowledged that they were not married when originally applying for benefits herself, as noted above. The Veteran's death certificate reflects that he was never married, and his VA medical records and various claims for VA benefits that he submitted either indicate that he had never been married, or that he was now divorced. See March 1992 Certificate of Death. Accordingly, because the evidence reflects that the appellant was not married to the Veteran at the time of his death, she is barred from recognition as the Veteran's surviving spouse. See 38 U.S.C. § 101(3); 38 C.F.R. §§ 3.50(b), 3.52. The Board does not question the sincerity of the appellant's belief that she is entitled to the benefit she seeks, and the Board feels deep sympathy for the appellant's situation, including the years of abuse she is purported to have endured, which she indicates was the cause of her separation from the Veteran. The Board's decision today is not intended to diminish the relationship that the appellant clearly did have with the Veteran. Additionally, the Board finds credible the statements of the appellant, her brother, and her former coworker that she and the Veteran had a ceremony at her house in August 1974 and that they attempted to file the proper paperwork in court. However, the Board is without the authority to disregard the applicable law, and there is no provision for benefits based on the arguments of equity or fairness. 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 (Edward F.) v. Derwinski, 2 Vet. App. 429 (1992). (Continued on next page.) Rather, the legal criteria governing the payment of VA death benefits are clear and specific, and, under the applicable legal standard, the appellant is not a "surviving spouse" for VA purposes. Further, because the appellant has not been found eligible to be the Veteran's surviving spouse for purposes of establishing eligibility for VA benefits, the remaining issue of entitlement to DIC benefits, survivor's pension, and/or accrued benefits must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 429-430 (1994). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.