Citation Nr: A21020407 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 211001-189045 DATE: December 22, 2021 ORDER Entitlement to recognition as the Veteran's surviving spouse for the purpose of death pension benefits is granted. FINDINGS OF FACT 1. The Veteran and the appellant were married in December 1950. 2. In her claim from May 2021, the appellant provided a competent statement that she and the Veteran were married in December 1950 in the State of Indiana and that neither had been married before. 3. The preponderance of the evidence indicates the Veteran and the appellant continuously cohabitated from the time they were married until the date of the Veteran's death in September 2016. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran's surviving spouse have been met. 38 U.S.C. § 101, 5107A; 38 C.F.R. §§ 3.50, 3.53, 3.204. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably on active duty in the United States Army from February 1951 to January 1953. Unfortunately, he passed away in September 2016. This matter comes before the Board of Veterans' Appeals (Board) from an August 2021 decision issued by a Regional Office or the Department of Veterans Affairs (VA) that denied the appellant's claim for death benefits because she did not provide a statement regarding whether she knew at the time of her marriage to the Veteran that it may not have been legal. In the October 2021 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction decision on appeal, as well as any evidence submitted by the appellant with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. The appellant seeks recognition as the Veteran's surviving spouse for the purposes of entitlement to VA survivor benefits. Specifically, she seeks death pension benefits with an additional amount based on the need for aid and attendance of another. She submitted her claim initially in May 2021and it was initially denied in June 2021. VA reiterated its denial in the August 2021 decision on appeal. When a veteran dies, his or her surviving spouse may be eligible to VA death benefits, to include Dependency and Indemnity Compensation (DIC) benefits, death compensation, and death pension. VA death benefits may be paid to a surviving spouse who was married to a veteran: (1) before the expiration of 15 years after the termination of the period of service in which the injury of disease causing death was incurred or aggravated, (2) one year or more prior to the veteran's death, 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, 1541; 38 C.F.R. § 3.54. The term "surviving spouse" means a person who was married to the veteran at the time of the veteran's death, who lived with the veteran continuously from the date of marriage to the date of death (barring circumstances not applicable here), and has not remarried since the veteran's death. 38 U.S.C. § 101(3); 38 C.F.R. §§ 3.50, 3.53. VA also has regulations that specifically address the proof required when an appellant asserts that he or she is a veteran's surviving spouse. Specifically, with the exception of the reasons set forth at 38 C.F.R. § 3.204(a)(2), VA will accept the statement of a claimant as proof of marriage for the purposes of entitlement to VA benefits provided that the statement contains the month and year and the place of the event and the full name and relationship of the veteran to the claimant. 38 C.F.R. § 3.204(a)(1). Additional proof of the types set forth at 38 C.F.R. §§ 3.205-211 will be required where: the claimant in question does not reside within a state; the claimant's statement on its face raises a question of its validity; the claimant's statement conflicts with other evidence of record; or, there is a reasonable indication of fraud or misrepresentation regarding the relationship in question. 38 C.F.R. § 3.204(a)(2). The facts in the instant case appear remarkably simple. The Board's review of the appellant's May 2021 claim form indicates all the requisite information from 38 C.F.R. § 3.204(a)(1) have been included. In this form, the appellant set forth both her name and the Veteran's and included each of their social security numbers. She also explained that the only marriage of each of them had been to the other and that their marriage occurred in December 1950 in Etna Green, Indiana. The appellant also stated that they had lived continuously from the date of their marriage until the date of the Veteran's death. None of the information in this claims form is contradicted by any other evidence of record regarding either the appellant or the Veteran's marital history. On the contrary, the Veteran's death certificate identifies the appellant as the Veteran's widow. Ultimately, it does not appear that any of the exceptions set forth at 38 C.F.R. § 3.204(a)(2) have been met that would trigger the duty to provide additional proof of the appellant's marriage to the Veteran. She resides in a state, her statement does not on its face raise a question of its validity, her statement does not conflict with other evidence of record, and there is no indication that it is a result of fraud or misrepresentation. As such, the Board finds that she provided sufficient proof of her marriage to the Veteran. It appears that the appellant's claim up to this point was denied in part due to the legibility of the marriage license she submitted in an attachment to her May 2021 claim form. However, she has since submitted another copy of this license with a clearer seal from the local official in Indiana. The Board does not find that this evidence rises to the level of any of the exceptions set forth at 38 C.F.R. § 3.204(a)(2) to require additional proof of marriage. Moreover, it appears that VA has to this point erred in its reading of the evidence regarding marital history. A May 2021 letter sent to the appellant indicated she had not provided a complete marital history for the Veteran and that therefore she needed to provide a statement regarding her knowledge regarding any potential reason why she and the Veteran were not free to marry. This letter appears to be referencing 38 C.F.R. § 3.52, which is the regulation that allows for VA to deem a marriage valid when an attempted marriage of a claimant to a veteran was invalid by reason of a legal impediment. However, as noted above, the appellant did provide both her and the Veteran's marital history in the May 2021 claim form. There, she reported the only marriage each had entered into was to the other. Accordingly, the Board has no reason to question the validity of the appellant's marriage to the Veteran and this regulation is not relevant to the instant inquiry. Ultimately, the Board finds that the appellant has provided sufficient information and proof regarding her marriage to the Veteran in accordance with 38 C.F.R. § 3.204. It appears she otherwise meets the criteria for a surviving spouse because she lived continuously from the date of her marriage to the date of death to the Veteran, she has not remarried, and she married the Veteran more than a year prior ot his death. For these reasons, the Board finds that the criteria for recognition of the appellant as the Veteran's surviving spouse have been met and VA may proceed to consider the merits of her case regarding death pension benefits. The appeal is granted. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Whitelaw, 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.