Citation Nr: 21027650 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-26 299 DATE: May 6, 2021 ORDER Recognition as the surviving spouse of the Veteran for the purpose of entitlement to Dependency and Indemnity Compensation (DIC) benefits is denied. FINDING OF FACT The preponderance of the evidence indicates that the appellant was not the spouse of the Veteran at the time of the Veteran's death. CONCLUSION OF LAW The criteria for recognition as the surviving spouse of the Veteran for the purpose of entitlement to DIC benefits have not been met. 38 U.S.C. §§ 101(3), 1310; 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1952 to September 1954. The Veteran passed away in June 2015. The appellant is his ex-spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at a videoconference hearing before the Board in March 2021. A transcript of that hearing has been associated with the claims file. Recognition as the surviving spouse of the Veteran for the purpose of entitlement to DIC benefits. "Marriage" means a marriage valid under the law of the place where the parties resided at the time of marriage or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. § 3.1(j). A "surviving spouse" means a person of the opposite sex whose marriage to the veteran meets the requirements of section 3.1(j) of VA regulation and who was the spouse of the veteran at the time of the veteran's death and who (1) lived with the veteran continuously from the date of marriage to the date of the veteran's death except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse; and (2) except as provided in Sec. 3.55, has not remarried. 38 C.F.R. § 3.50(b). The appellant has acknowledged that their separation was not her fault but was due to the misconduct of the veteran who mentally and emotionally abused her, resulting in her obtaining a restraining order and subsequent divorce. Her argument appears to address the provisions of section 3.50(b)(1) and 3.53 stating that the requirement of continuous cohabitation will be considered as having been met when the evidence shows that any separation was due to the misconduct of, or procured by, the Veteran without the fault of the surviving spouse. However, this regulation is only relevant where the legal marriage continued up to the date of the Veteran's death not, as in this case, where the marriage was dissolved by divorce eight years prior to death. The regulation specifically addresses continuous cohabitation "from the date of marriage to the date of death of the veteran." 38 C.F.R. § 3.53(a). In this case, the marriage ceased eight years before the Veteran died. Therefore, the reason for any separation prior to the date of divorce or the reason for the divorce is not relevant to the question of whether the appellant may be considered the surviving spouse of the Veteran because the marriage terminated in divorce prior to his death. Thus, the appellant was not his spouse at the time of his death. 38 C.F.R. § 3.50(b). The Board notes that the appellant attempted to assert that she and the Veteran had a common law marriage as she still assisted in his care and visited him in his nursing home through the date of his death. The Veteran's representative noted that the appellant was withdrawing her assertion to a common law marriage. In any event, as "marriage" means a marriage valid under the law of the place where the parties resided at the time of marriage or the law of the place where the parties resided when the right to benefits accrued and both parties lived in Massachusetts throughout the period in question, a common law marriage would not be considered a valid marriage as Massachusetts does not recognize common law marriage. 38 C.F.R. § 3.1(j). The Board finds that the appellant is not the surviving spouse of the Veteran as she did not have a valid marriage to the Veteran at the time of his death. Therefore, her claim is denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patricia Veresink, 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.