Citation Nr: 21075250 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-49 662 DATE: December 20, 2021 ORDER Entitlement to recognition as the surviving spouse of the deceased Veteran for the purpose of establishing Dependency and Indemnity Compensation (DIC) benefits is granted. REMANDED Entitlement to Dependency and Indemnity Compensation (DIC) benefits is remanded. FINDINGS OF FACT 1. The appellant was legally married to the Veteran; was his spouse at the time of his death; lived with the Veteran continuously; and has not remarried since the death of the Veteran. 2. The appellant's common law marriage to the Veteran is deemed valid from the date the appellant divorced her first husband (R.L.N.) in September 2013, until their legal ceremonial marriage in August 2014. 3. The appellant and Veteran were legally married from August 2014 until the Veteran's death in April 2015. CONCLUSION OF LAW The criteria for entitlement to recognition as the surviving spouse of the deceased Veteran for the purpose of establishing Dependency and Indemnity Compensation (DIC) benefits have been met. 38 U.S.C. §§ 101, 1102, 1304, 1541; 38 C.F.R. §§ 3.1(j), 3.50, 3.53. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1968 to July 1971. The Veteran died in April 2015. The appellant seeks recognition as the Veteran's surviving spouse for purposes of entitlement to VA death benefits. This matter comes before the Board of Veterans' Affairs (Board) on appeal from a January 2016 Notification Letter of a VA Regional Office (RO) determination that denied the appellant's claim for Dependency and Indemnity Compensation (DIC) benefits. The agency of original jurisdiction (AOJ) sought clarification regarding the appellant's incomplete VA Form 9, and the appellant confirmed that she wanted a videoconference hearing. See October 2017 Report of General Information. Then, in an October 2021 Report of General Information, the appellant indicated that she does not wish to have a hearing. The appellant has filed a motion to advance her appeal on the docket (AOD) due to homelessness, and the Board acknowledges that the evidence of record indicates that the appellant lives in public housing as of July 2017 and she has expressed that she is financially burdened. See July 2017 statement in support of claim. Appeals are generally considered in docket number order, but may be advanced on the docket for sufficient cause, which may include advanced age, serious illness, severe financial hardship, or administrative error resulting in a significant delay. 38 U.S.C. § 7107(a) (2012); 38 C.F.R. § 20.900 (c) (2017). The Board finds that sufficient cause has been shown due to severe financial hardship, and the motion to advance the case on the docket is granted. See 38 U.S.C. § 7107(a)(2) (West 2014), 38 C.F.R. § 20.900(c) (2017). Entitlement to recognition as the surviving spouse of the Veteran for the purpose of establishing Dependency and Indemnity Compensation (DIC) benefits is granted. The appellant contends that she should be recognized as the surviving spouse of the Veteran for VA death benefit purposes. When a veteran dies, his or her surviving spouse may be eligible for VA death benefits, to include DIC benefits, death compensation, and death pension. See 38 U.S.C. §§ 1310, 1541; 38 C.F.R. § 3.50(a). DIC benefits are payable to a surviving spouse who was married to the veteran: (1) within 15 years of the end of the period of service in which the injury or disease causing 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. § 1304; 38 C.F.R. § 3.54(c). 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). The term "surviving spouse" means a person (1) whose marriage to the Veteran was valid under the law of the place of residence at the time of the marriage or when the right to benefits accrued; (2) who was the spouse of a Veteran at the time of the Veteran's death; (3) 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 that was due to the misconduct of, or procured by, the Veteran without the fault of the spouse; (4) and who, except as provided in 38 C.F.R. § 3.55, has not remarried or has not since the death of the Veteran and after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of such other person. See 38 U.S.C. §§ 101 (3), 103 (c); 38 C.F.R. §§ 3.1 (j), 3.50 (b). The Board finds that the appellant is the Veteran's surviving spouse for the purposes of entitlement to VA death benefits. Turning to the evidence, in December 1972 the Veteran married M.A.S. in New York. The parties were subsequently divorced. In February 1980 the Veteran married K.M.K. in New York. In August 1995, a Divorce Judgment was issued finalizing the divorce of K.M.K. and the Veteran. In March 1979, the appellant married R.L.N. in Florida. The parties separated in September 1993. The appellant submitted numerous personal and buddy statements supporting that she lived with the Veteran "as husband and wife" from September 2008 to April 2015. See August 2015 personal statement; May 2016 notice of disagreement (NOD); May 2015 buddy statements from E.B.; June 2017 buddy statement from A.C. and G.S.C. The Veteran's cousin, K.A.C., noted that the Veteran wanted to be able to take care of the appellant after his death and he believed she would be entitled to his VA benefits. See May 2016 buddy statement. In a July 2017 personal statement, the appellant further evidenced their life together as a couple by referencing how they combined their income to pay bills and how the appellant stopped working to take care of the Veteran's declining health. In a July 2017 Statement of Marital Relationship, the appellant noted that she and the Veteran lived in Florida from September 2008 to July 2014, and New York from July 2014 to April 2015. The Board finds that the earliest date in which the appellant began living together with the Veteran was in September 2008. The Veteran lived with appellant in both Florida and New York. In September 2013, a Divorce Judgement, was issued finalizing the divorce of R.L.N. and the appellant. Due to the Veteran's service-connected disabilities, he was placed into VA hospice care in June 2014. Although VA medical records indicate that the appellant was the Veteran's "girlfriend," the appellant consistently visited the Veteran and was on-call if needed overnight. When the Veteran was discharged in August 2014, he was discharged to an apartment setting with the appellant. In August 2014 the Veteran married the appellant, in New York. As noted above, the Veteran passed away in April 2015. The Board finds that the appellant meets the necessary criteria to qualify as the Veteran's "surviving spouse" under 38 C.F.R. § 3.50. The appellant was legally married to the Veteran; was his spouse at the time of his death; lived with the Veteran continuously; and has not remarried since the death of the Veteran. Although there was a short period of time in which they lived separately, this was not due any misconduct on behalf of the appellant, but rather, due to the Veteran's hospice care. Furthermore, the provision regarding surviving spouses under 38 U.S.C. § 1304 does not prevent the appellant from collecting DIC benefits, because the appellant may be considered married to the Veteran for more than one year. The appellant contends that she had a common law marriage to the Veteran starting in September 2008, resulting in 6 years of marriage. However, the Board finds that the parties had approximately 11 months of what may be deemed as common law marriage (September 2013 to August 2014) and 8 months of legal marriage (August 2014 to April 2015), totaling one year and 6 months. The Board notes that the state of New York does not recognize common law marriages contracted in the state after April 29, 1933. See N.Y. Dom. Rel. § 11 (Consol. 2019). The state of Florida also does not recognize common law marriages contracted in the state after January 1, 1968. See Fla. Stat. § 741.211 (LexisNexis 2019). Nevertheless, VA will recognize marriages that were invalid because of legal impediment, provided the parties were unaware of the impediment and cohabited continuously from the date of marriage to the date of the Veteran's death. See 38 U.S.C. § 103. VA refers to such marriages as "deemed valid." 38 C.F.R. § 3.52. The requirement of a marriage ceremony by a jurisdiction that does not recognize common law marriage constitutes a "legal impediment" to such a marriage for purposes of 38 U.S.C. § 103(a). VAOPGCPREC 58-91 (June 17, 1991); see also Lamour v. Peake, 544 F.3d 1317 (2008); Colon v. Brown, 9 Vet. App. 104 (1996). In this case, both parties were unaware of the legal impediment regarding common law marriages in New York and Florida. The Veteran's cousin, K.A.C., stated that the Veteran wanted to take care of the appellant after his death and the Veteran "believed she would be entitled" to his benefits because "she is his wife and has been in every sense of the word since 2009." The appellant was similarly "promised" by the Veteran that the VA would help and take care of her. See May 2016 NOD. If the parties were aware of the legal impediment caused by common law marriages, then they would have known that the appellant would not have been eligible for VA benefits. However, both parties thought the appellant would be eligible. Therefore, since the parties were unaware of the legal impediment, the common law marriage between the Veteran and appellant is deemed valid. Although the VA will recognize common law marriages as valid due to a "legal impediment," VA may not recognize a marriage when one already exists. The appellant was still married to her first husband (R.L.N.) when she began cohabitation with the Veteran in September 2008. Although the appellant was separated from R.L.N. since September 1993, their marriage was still valid. The Board finds that being married to another person contradicts the appellant's contention that she and the Veteran entered into a common law marriage since September 2008. However, when the appellant and R.L.N. were divorced in September 2013, the appellant could then be considered as entering into a common law marriage with the Veteran. The appellant submitted numerous statements from friends and family to support the contention that a marital relationship existed between them up until the time of the Veteran's death. These indicated that the Veteran and the appellant were generally known as husband and wife and that they had lived together continuously until the Veteran got sick and went into hospital care. The Board recognizes that the appellant and the Veteran held themselves out openly to the public as each other's partner. While the Board notes that VA treatment records indicate that the Veteran referred to the appellant as his "girlfriend" when speaking with a VA healthcare professionals in early and mid-2014, when considering the totality of the evidence of record, the Board finds the evidence to have at least reached the point of equipoise as to whether they lived together as husband and wife and held themselves out as such prior to their ceremonial marriage so as to allow for resolution of doubt in the appellant's favor. The appellant and the Veteran are thus found to have had a valid common law marriage from September 2013 until their legal marriage in August 2014; and a legal marriage until the Veteran's death in April 2015. The appellant and the Veteran may thus be deemed married for a total of one year and 6 months. Since the appellant was married to the Veteran for over one year, she is entitled to collecting DIC benefits as a surviving spouse. Considering the foregoing, the Board finds that the evidence supports recognition of the appellant as the surviving spouse of the Veteran. REASONS FOR REMAND Entitlement to Dependency and Indemnity Compensation (DIC) benefits is remanded. Having found that the appellant qualifies as the Veteran's surviving spouse, the Board notes that the appellant submitted a June 2016 Notice of Disagreement appealing the January 2016 denial of DIC benefits. As a statement of the case has not yet been issued, remand is required for the AOJ to issue a statement of the case. See 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matter is REMANDED for the following action: Send the appellant and her representative a statement of the case that addresses the issue of entitlement to Dependency and Indemnity Compensation benefits. If the appellant perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. A. SOLOMON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. E. Bresler, 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.