Citation Nr: 21021440 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-13 356 DATE: April 13, 2021 ORDER Entitlement by the appellant to dependency and indemnity compensation (DIC), as the surviving spouse of the Veteran, is denied. FINDINGS OF FACT 1. The Veteran and the appellant were legally married in Reno, Nevada in November 1967. 2. The Veteran and the appellant were then legally divorced in Santa Clara County, California in December 1992. 3. The Veteran and the appellant resumed cohabitation in the last one or two years of the Veteran’s life, and they entered a Domestic Partnership agreement in the state of California in May 2014. 4. The Veteran died in September 2014 due to his service-connected heart disorder. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran’s surviving spouse for purposes of entitlement to VA benefits have not been met. 38 U.S.C. §§ 101(3), 1541, 5107; 38 C.F.R. §§ 3.1(j), 3.3, 3.50, 3.52, 3.205. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served from November 1967 to June 1969. The Veteran died in September 2014. The appellant is claiming status as the Veteran’s surviving spouse. She testified before the undersigned Veterans Law Judge during a video hearing held in November 2020; a transcript of the hearing has been associated with the record. This case comes to the Board of Veterans’ Appeals (Board) from October 2014 and August 2015 notification letters of the Department of Veterans Affairs (VA) Regional Office that informed the appellant that she was not entitled to death benefits because she could not be recognized as the Veteran’s surviving spouse. The appellant contends that she should be considered the surviving spouse of the Veteran for purposes of DIC benefits. She has submitted written statements describing that she and the Veteran had been previously married and divorced, but that by the end of his life, they were living together and in a legal Domestic Partnership. She has written that even after their divorce, following a two-year separation gap, they continued living together, and that she continued to look after the Veteran until his death. She asserts that either their Domestic Partnership should be accepted as a marriage, or they should be considered to have been in a common-law marriage for VA purposes. She wrote in November 2014 that the Veteran had been living with her for seven months when he had to go into the hospital for his final illness. She wrote in a separate November 2014 statement that she had lived with the Veteran for almost one complete year until he passed away. In March 2015, she wrote that she actually had lived with the Veteran continuously until the time of his death, and that their periods of not living together were brief and temporary. She then wrote that they did live together for the last year of his life. She has submitted bank statements and indicated that the Veteran and his daughter were paying her to look after the Veteran at the end of his life. In July 2015, she wrote that after their divorce, she and the Veteran stayed close, because he needed her assistance with his physical care. She wrote that they filed papers as domestic partners “thinking that bound us in every way necessary as a couple, better defining our life long status.” She wrote that because of the Veteran’s disabilities, he was physically incapable of going through the ceremonial rite of marriage. At the November 2020 Board hearing, she testified that after their divorce, the Veteran moved in with his daughter, but that she lived with the Veteran for the last 2 years of his life. She stated that she had called for someone to come to the house to marry them, but that the form they were given was actually a domestic partnership. The Veteran’s daughter wrote in November 2014 that her parents had been married for 25 years when they got a divorce. She wrote that they later reconciled, and they all took care of him when he became ill. She wrote that the Veteran wanted to renew his vows, but was so sick, they just did a domestic partnership. She wrote that she believed her mother should be receiving benefits, because she spent a whole life with him. When a veteran dies of a service-connected disability, the veteran’s surviving spouse is eligible for DIC benefits. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). In this case, it has been established that the Veteran died of a service-connected disability. The Veteran was awarded service connection for congestive heart failure due to ischemic heart disease. The Veteran’s death certificate shows that he died from cardiac arrest, sepsis, and ischemic cardiomyopathy, and an October 2014 rating decision found that the Veteran’s cause of death was directly related to military service. A surviving spouse is the spouse of a veteran at the time of the veteran’s death, and who lived with the veteran continuously from the date of marriage to the date of the veteran’s death and who has not remarried or, after September 19, 1962, lived with another person or held himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). The law provides that DIC benefits may be paid to a surviving spouse who was married to a 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. 38 U.S.C. §§ 1102, 1304; 38 C.F.R. § 3.54. The validity of a marriage is determined based upon the law of the jurisdiction where the parties resided at the time of marriage or when the rights to benefits accrued. 38 C.F.R. § 3.1(j). In jurisdictions where marriages other than by ceremony are recognized, such as “common law marriages,” the marriage can be established through evidence such as length of cohabitation and whether children were born as a result of the relationship. 38 C.F.R. § 3.205. 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 it occurred one year or more before the veteran died or existed for any period of time if a child was born, and the claimant entered into the marriage without knowledge of the impediment, the claimant cohabitated with the veteran continuously until his death, and no claim had been filed by a legal surviving spouse who has been found entitled to death benefits. 38 C.F.R. § 3.52. In this case, the Board finds that the evidence of record does not establish that the appellant is the Veteran’s legal surviving spouse. Prior to his death, the Veteran did not report having a spouse or request to be paid at the higher rate available to Veteran’s with a spouse dependent. The Veteran’s September 2014 death certificate lists his marriage status as divorced. The appellant has submitted documentation showing that she had the Veteran were legally married in Reno, Nevada in November 1967. They were then legally divorced in Santa Clara County, California in December 1992. In May 2014, they entered into a registered Domestic Partnership in the state of California. The Board acknowledges that the appellant believes that her Domestic Partnership agreement should qualify as a type of marriage for VA purposes. Unfortunately, the Board does not find that a Domestic Partnership can be accepted as a marriage for the purposes off awarding DIC benefits. VAOGCPREC 4-2014 (June 20, 2014) addressed the distinctions between marriages and other partnerships under state law for the purposes of administration of spousal benefits under 38 U.S.C. § 103(c). In this opinion, the Office of General Counsel stated that the plain language of § 103(c) requires that for a person to be considered a spouse of the Veteran, VA must look at state law to determine the validity of the marriage. In addition, a domestic partnership that is not recognized as a “marriage” under state law cannot be considered a valid marriage for VA purposes. However, § 103(c) provides two alternative bases for determining the validity of a marriage. Specifically, § 103(c) provides that VA shall look to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued. It explicitly stated that this opinion interpreted 38 U.S.C. § 103(c) for the purposes of both opposite-sex marriages and same-sex marriages of veterans. See VAOGCPREC 4-2014 (June 20, 2014). The state of California introduced domestic partnerships for same-sex couples, and for opposite-sex couples where one or both participants was at least 62 years of age, in the Domestic Partnership Act of 1999. The scope of a domestic partnerships was then expanded through the California Domestic Partner Rights and Responsibilities Act of 2003. In 2019, the law was again revised to allow opposite-sex couples of any age to enter into a domestic partnership. Pursuant to California Family Code § 297, as it was written at the time of the appellant’s 2014 domestic partnership agreement, a domestic partnership was established when both persons filed a Declaration of Domestic Partnership with the Secretary of State and, at the time of filing, all of the following requirements were met: 1) Neither person is married to someone else; 2) The two persons are not related by blood in a way that would prevent them from being married; 3) Both persons are at least 18 years of age; 4) They are either i) members of the same sex, or ii) one or both persons meet the eligibility criteria under Title II or Title XVI of the Social Security Act for old-age insurance benefits and are at least 62 years of age; and 5) Both persons are capable of consenting to the domestic partnership. Domestic Partner Registration, Cal. Fam. Code § 297 (2014). The creation of domestic partnerships, and the expansion of the rights and obligations assigned to domestic partnerships in 2003, was intended to make domestic partnership largely the same as marriage under California law. The law stated that: Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses. Cal. Fam. Code § 297.5 (2014). This revised law did not, however, apply to federal laws which affected marriage. The law indicated that: To the extent that provisions of California law adopt, refer to, or rely upon, provisions of federal law in a way that otherwise would cause registered domestic partners to be treated differently than spouses, registered domestic partners shall be treated by California law as if federal law recognized a domestic partnership in the same manner as California law. Cal. Fam. Code § 297.5(e) (2014). This indicates that while California agencies may be required to treat domestic partners are the full equivalent of married partners, this does not apply to federal agencies, which are required to follow federal statutes and regulations. The legislative history of the Domestic Partnership Act of 1999 also demonstrates that this law was created in order to provide some marriage-like benefits to same-sex partners, but also to extend this formalized union to senior citizens who were concerned that remarriage would jeopardize established pension and/or Social Security benefits. The California Senate Rules Committee analysis noted: Especially to senior citizens, cohabitation with a trusted friend, male or female, could give them companionship, security and independence they so need at this time of their lives. Yet, many would not, or could not, marry due to restrictions on social security or other pension benefits that would affect their incomes. California Senate Judiciary Committee, Domestic Partnerships Bill Analysis, AB26, Hearing Date: July 7, 1999, http://www.leginfo.ca.gov/pub/99-00/bill/asm/ab_0001-0050/ab_26_cfa_19990708_092134_sen_comm.html. This indicates that it was part of the legislative intent for domestic partnerships that senior citizens would be able to enter such an agreement, giving them certain privileges, such as hospital visitation rights, but it would not affect the benefits or other entitlements received through federal agencies. Finally, the Board notes that the Court of Appeals for Veterans Claims, in an unpublished decision, affirmed a finding that a domestic partnership is not a marriage under California law. See Henderson v. Shinseki, 2012 U.S. App. Vet. Claims LEXIS 1117 (Vet. App May 31, 2012). For these reasons, the Board finds that the appellant’s Domestic Partnership under California law is not a marriage for VA purposes. The Board acknowledges that the appellant has asserted that she believed that a domestic partnership was essentially the same as a marriage, but that they could not get married because the Veteran’s health was too poor to go through with a marriage ceremony. The Board notes that California does not require a religious ceremony in order to get married, and that to get married, the two parties must only consent to the marriage, then obtain a license and solemnize their marriage. Cal. Fam. Code § 300(a). The county clerk issues the license, which then becomes a marriage certificate when it is registered with the county recorder. Cal. Fam. Code § 300(b). The appellant has not presented any reason why they would have been unable to obtain a marriage license in the same manner that they obtained a domestic partnership, and the Board finds no other legal impediment existed to entering a marriage. The appellant has also submitted pages from their tax returns to show that she marked that she was married on her 2014 tax form. She has argued that because the state of California accepted their tax return, this shows assent by the state to their married status. The Board notes that California law stated that “Notwithstanding this section, in filing their state income tax returns, domestic partners shall use the same filing status as is used on their federal income tax returns, or that would have been used had they filed federal income tax returns.” Cal. Fam. Code § 297.5(g) (2014). But whether the appellant correctly filed her state tax returns or not is far out of the purview of the Board, and any decision made by the California Department of Tax & Fee Administration is not binding on decisions made by Board. The Board also acknowledges that the appellant has asserted that she had to divorce the Veteran because he was abusive. In May 2016, she wrote that they divorced because the Veteran was abusive, but they were still very close. At the November 2020 Board hearing, she testified that she divorced the Veteran in December 1993, because his temper had gotten worse and he used to beat her quite often. VA does allow for a waiver of the continuous cohabitation requirement when separation was due to the conduct of the Veteran, such as in situations of domestic abuse. See 38 C.F.R. § 3.53(a). In this case, however, this is not a question of whether the appellant was required to stop cohabitating with the Veteran due to physical abuse. The appellant and the Veteran had formally divorced, which ended their marriage. They then reconciled and began living together again at the end of the Veteran’s life, but entered into a domestic partnership instead of a marriage. The circumstances of their separation in 1992 therefore do not affect the Board’s decision. The Board notes that burial benefits have already been paid to the Veteran’s daughter, T.L., in October 2014, and there is no allegation that benefits should be awarded to the appellant under any other basis, such as reimbursement for burial or last illness expenses. The appellant has in fact indicated that she was already paid by her daughter for care provided to the Veteran at the end of his life. In sum, the appellant and the Veteran were legally divorced and later entered into a domestic partnership in 2014. They had not entered into a marriage under California law at the time of the Veteran’s death, and unfortunately the Board is therefore unable to recognize the appellant as his surviving spouse. Therefore, as a matter of law, the claim of entitlement to recognition as the Veteran’s dependent spouse for DIC benefits must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board sympathizes with the appellant regarding the inequities she believes result from not being entitled to dependency benefits for her domestic partner. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis when there is no provision allowing for such benefits under the law. See 38 U.S.C. §§ 503, 7104; Burris v. Wilkie, 888 F.3d 1352, 1358 (Fed. Cir. 2018). “No equities, no matter how compelling, can create a right to payment of the United States Treasury which has not been provided for by Congress.” Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). The Board is bound by the law governing the recognition of dependents for VA purposes in its determination in this case. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary E. Rude, 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.