Citation Nr: 21072990 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 19-00 357A DATE: December 7, 2021 ORDER Entitlement to accrued benefits is denied. Entitlement to nonservice-connected death pension (survivor's pension) benefits is denied. REMANDED Entitlement to service connection for the cause of the Veteran's death, for purposes of receiving Dependency and Indemnity Compensation (DIC), to include the preliminary matter of recognition of the appellant as the surviving spouse of the Veteran, is remanded. FINDINGS OF FACT 1. The appellant did not file a claim for accrued benefits within one year following the Veteran's reported death. 2. The Veteran did not have the requisite wartime service to establish basic eligibility for nonservice-connected death pension benefits. CONCLUSIONS OF LAW 1. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 1101, 1110, 5121; 38 C.F.R. § 3.1000. 2. The criteria for basic eligibility for nonservice-connected death pension benefits have not been met. 38 U.S.C. §§ 101, 503, 1521, 1541, 1543, 7104; 38 C.F.R. §§ 3.2, 3.3, 3.23. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1991 to May 1991. He died in April 2015. The appellant seeks to be recognized as his surviving spouse. The current appeal before the Board of Veterans' Appeals (Board) arose from an August 2016 rating action in which a Department of Veterans Affairs (VA) Regional Office (RO) denied entitlement to survivor's pension benefits, entitlement to accrued benefits, and entitlement to DIC (based on a finding that the appellant could not be recognized as the Veteran's surviving spouse). Entitlement to accrued benefits Accrued benefits are periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid, that shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran had a claim pending at the time of death, (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran's death. 38 U.S.C. § 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). The appellant asserts that she is entitled to accrued benefits for the Veteran's claimed posttraumatic stress disorder (PTSD), which claim was pending at the time of his death, and decided shortly after his death. Review of the claims file shows that the Veteran died in April 2015. However, VA received the appellant's claim for accrued benefits in June 2016, more than one year after the Veteran's death. After a review of the evidence, the Board finds, without reaching the merits of the underlying service connection claim, that the award of accrued benefits is precluded by law. In this regard, the appellant's application for accrued benefits was not filed within one year of the Veteran's death as mandated by law. See 38 C.F.R. § 3.1000(c). Thus, the appellant's accrued benefits claim is barred as untimely, regardless of whether she had standing as the surviving spouse of the Veteran or whether the Veteran would have ultimately prevailed on the claim. As the appellant did not file a claim for accrued benefits within one year after the Veteran's death, she is not eligible for accrued benefits. This claim is precluded by law. In cases such as this, where the law is dispositive, the claim must be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). Entitlement to nonservice-connected death pension benefits Death pension is a benefit payable in certain circumstances to a veteran's surviving spouse because of the veteran's nonservice-connected death. Basic entitlement exists if (i) a veteran served for 90 days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability based on service during a period of war; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 U.S.C. §§ 101(8), 1521(j), 1541(a); 38 C.F.R. §§ 3.3(b)(4), 3.23(a)(5), (d)(5). VA presently recognizes the following as periods of war: January 1, 1817, through December 31, 1898, inclusive; April 21, 1898, through July 4, 1902, inclusive; May 9, 1916, through April 5, 1917; April 6, 1917, through November 11, 1918, inclusive; December 7, 1941, through December 31, 1946, inclusive; June 27, 1950, through January 31, 1955, inclusive; August 5, 1964, through May 7, 1975, inclusive; and August 2, 1990, through a date to be prescribed by Presidential proclamation or law. 38 C.F.R. § 3.2. As the Veteran served on active duty from April 18, 1991 to May 21, 1991, his only period of service was for just a little over 30 days. The appellant does not dispute his recorded dates of service, and the record does not otherwise reflect that he had any additional periods of service. Further, the evidence does not show that service connection was in effect for any disability based on a period of war. The Board graciously recognizes the Veteran's service and commitment to his country, but 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). As the provisions for entitlement to death pension benefits are defined by statute, the Board does not have jurisdiction to extend benefits for equitable reasons. Accordingly, where the Veteran does not meet the war time service requirements for the award of death pension benefits, basic eligibility for death pension benefits is not established, and the appellant's claim must be denied as a matter of law. See Sabonis, Vet. App. at 429. REASONS FOR REMAND Entitlement to service connection for the cause of the Veteran's death, to include the preliminary matter of recognition of the appellant as the Veteran's surviving spouse The appellant seeks entitlement to DIC benefits based on the Veteran's death. As the record does not contain his death certificate or terminal treatment records, the cause of his death is not currently apparent in the record. The appellant specifically stated that, while she cohabited with the Veteran for 14 years, she was not formally married to him. Notably, the State of Louisiana, where the Veteran and the appellant resided, does not recognize common-law marriage. See La. Civ. Code Ann. art. 91. Nevertheless, where there is an impediment to entering into a common law marriage, if the appellant was unaware of the impediment at the time of apparent marriage, then an otherwise invalid common law marriage could be deemed valid. Colon v. Brown, 9 Vet. App. 104, 107-08 (1996); see also Lamour v. Peake, 544 F.3d 1317 (Fed. Cir. 2008). Such such a 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 (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. When a claimant submits proof of marriage in accordance with 38 C.F.R. § 3.52 and 38 C.F.R. § 3.205(a), VA will determine whether the surviving spouse had knowledge of the legal impediment. The decision regarding knowledge of a legal impediment is viewed in terms of "what the appellant's state of mind was at the time that the invalid marriage was contracted." Dedicatoria v. Brown, 8 Vet. App. 441, 444 (1995). Here, the record does not contain evidence of whether the appellant entered into a believed common-law marriage with knowledge of a legal impediment to such marriage, or whether she cohabited with the Veteran continuously from the date of marriage to the date of his death, as outlined in § 3.53. Thus, on remand, the Agency of Original Jurisdiction should ask the appellant to provide evidence of common law marriage to the Veteran pursuant to 38 C.F.R. § 3.52 and 38 C.F.R. § 3.205(a). Accordingly, this matter is REMANDED for the following action: 1. Ask the appellant to provide VA with a copy of the Veteran's death certificate. 2. Also, ask the appellant to identify where the Veteran received treatment for the disabilities that apparently led to his death, including his terminal treatment. Then, obtain the Veteran's outstanding records pertaining to such treatment, to include his terminal treatment records proximate to the time of his death. For any treatment rendered by a private provider, ask the appellant to provide VA with authorization, on VA Form 21-4142, to obtain such records. Make two requests for all authorized records, unless it is clear after the first request that a second request would be futile. Ensure compliance with the procedures set forth in 38 C.F.R. § 3.159. 3. Also, ask the appellant to provide evidence of her common law marriage to the Veteran. Such evidence may include affidavits or certified statements of one or both of the parties to the marriage, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between them at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship; and any additional secondary evidence which could reasonably supports a belief that a valid marriage actually occurred. No action is required of the appellant until she is notified by VA. However, she is advised of her obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). She has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.