Citation Nr: 21021450 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 18-12 784 DATE: April 13, 2021 ORDER Entitlement to recognition of the appellant as the surviving spouse of the Veteran for the purpose of Department of Veterans Affairs (VA) benefits is denied. FINDING OF FACT 1. The weight of evidence shows that the Veteran and the appellant were married from June 1965 until their divorce in December 2014. 2. The weight of evidence is against a finding that the Veteran and the appellant thereafter remarried each other. CONCLUSION OF LAW The criteria for entitlement to recognition of the appellant as the surviving spouse of the Veteran for the purpose of VA benefits have not been met. 38 U.S.C. §§ 101, 103, 503, 1521, 1541, 5103, 5103A, 7104 (2012); 38 C.F.R. §§ 3.1, 3.3, 3.5, 3.50, 3.52, 3.53, 3.205, 3.206 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from November 1962 to March 1975. The Veteran died in March 2015. This case comes before the Board of Veterans’ Appeals (the Board) on appeal from a September 2015 determination of a VA Regional Office (RO). In January 2021, the appellant testified at a virtual hearing before the undersigned Veterans Law Judge and a transcript of that hearing has been associated with the electronic claims file. VA’s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). 1. Entitlement to recognition of the appellant as the surviving spouse of the Veteran for the purpose of VA benefits Governing Law and Regulation Dependency and Indemnity Compensation is a payment made by VA to a “surviving spouse”, child or parent because of a service-connected death occurring after December 31, 1956. 38 U.S.C. § 101(14); 38 C.F.R. § 3.5(a)(1). The pertinent law and regulations authorize the payment of death pension benefits to the surviving spouse of a veteran of a period of war. In that regard, the requirements of law include that a veteran must have served in active, military, naval or air service for ninety days or more during a period of war. See 38 U.S.C. §§ 1521(j), 1541; 38 C.F.R. § 3.3(b); see also Dilles v. Brown, 5 Vet. App. 88, 89-90 (1993). Under 38 C.F.R. § 3.50(a), a spouse is a person of the opposite sex whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1(j). 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 of the opposite sex (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 (i.e. continuous cohabitation); (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 of the opposite sex and held herself out openly to the public to be the spouse of such other person. See 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). Proof of divorce or termination of a prior marriage can be established by a certified copy or certified abstract of final decree of divorce or annulment specifically reciting the effects of the decree. 38 C.F.R. § 3.205(b). Common law marriages are not recognized as valid under the laws of the state of Massachusetts. Collins v. Guggenheim, 417 Mass. 615 (1994). Massachusetts courts, however, will give full faith and credit to cohabitating relationships that were deemed to be marriages in states where common law marriage has legal recognition. Craddock’s Case, 310 Mass. 116 (1941). The United States Court of Appeals for Veterans Appeals (the Court) has held that one claiming to be the spouse of a Veteran has the burden to come forward with preponderating evidence of a valid marriage under the laws of the appropriate jurisdiction. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). Analysis A marriage certificate shows that the Veteran and the appellant got married in June 1965. A divorce decree reflects that they got divorced in December 2014. The Veteran died in March 2015. The Veteran and the appellant resided in the Commonwealth of Massachusetts. The appellant argues that she should be recognized as a surviving spouse because she continued to cohabitate with the Veteran after their divorce and until his death and provided daily assistance to him while he was dying. She testified that they were divorced on paper but not in reality. Hearing transcript, page 12. A private treatment record dated in March 2015 identifies the appellant as the Veteran’s spouse. The appellant, however, does not claim that she got remarried to the Veteran in a legal ceremony during the period between their divorce and his death. In that regard, the March 2015 VA Form 21-534 (application for dependency and indemnity compensation, death pension, and accrued benefits) reflects that the appellant reported that the Veteran was married once, that his only marriage was to the appellant, and that they were married from June 1965 to December 2014. The Veteran’s death certificate reflects that his marital status was divorced. Accordingly, there is no evidence that the appellant and the Veteran got remarried in a legal ceremony prior to the Veteran’s death. To the extent the appellant argues that she was in common law marriage with the Veteran when they cohabitated after their divorce in December 2014, the Board notes that the common law marriages are not legally recognized in Massachusetts unless they are cohabitating relationships that were deemed to be marriages in states where common law marriage has legal recognition. There is no evidence that the Veteran and the appellant resided outside of Massachusetts in the period between their divorce in December 2014 and his death in March 2015. Thus, there is no evidence that they resided in a state where their cohabitating relationship could be recognized as a common law marriage during the time period in question. In short, their post-divorce cohabitating relationship was not a relationship recognized as a marriage in the Commonwealth of Massachusetts. The Board notes that the Veteran and the appellant were married over 49 years and that she continued to provide care to the Veteran during their period of post-divorce cohabitation. To some degree, the appellant appears to be raising an argument couched in equity. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The weight of evidence shows that the Veteran and the appellant were married from June 1965 until their divorce in December 2014. The weight of evidence is against a finding that the Veteran and the appellant thereafter remarried each other. Therefore, the preponderance of the evidence is against the claim, and it is denied. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, 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.