Citation Nr: 21029452
Decision Date: 05/13/21	Archive Date: 05/13/21

DOCKET NO. 18-26 457
DATE: May 13, 2021

ORDER

Entitlement to recognition as the surviving spouse as defined by the Department of Veterans Affairs (VA) for eligibility to Dependency and Indemnity Compensation (DIC) benefits is denied.

FINDINGS OF FACT

1. The Veteran and the appellant first married in June 1986 and divorced in 1992; thereafter they married in March 1998 and then divorced in 2007.

2. The appellant and the Veteran were not legally married at the time of the Veteran's death on June [REDACTED], 2017.

3. The appellant and the Veteran did not consider themselves to be married on any basis at the time of the Veteran's death. 

4. Although the appellant and Veteran may have resided together for years prior to the Veteran's death in 2017, the weight of the probative evidence does not support the existence of a common law marriage sufficient to otherwise establish entitlement to eligibility as a surviving spouse

5. Common law marriage is not recognized in Missouri, thus, the establishment of a marital relationship for VA purposes is not warranted. 

CONCLUSION OF LAW

The appellant is not recognized as the Veteran's surviving spouse for establishing entitlement to DIC benefits. 38 U.S.C. § 103; 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.54.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from January 1973 to March 1974. The Veteran died in June 2017.  The appellant seeks recognition as his surviving spouse for VA death benefits. 

The appellant testified before the undersigned Veterans' Law Judge at an April 2021 Board of Veterans' Appeals (Board) hearing.  A transcript of the hearing is of record.  

DIC

Only eligible applicants are entitled to VA benefits. Governing law provides that certain death benefits, including pension, may be paid to the surviving spouse of a veteran if certain requirements are met. 38 U.S.C. §§ 103, 1304, 1541 (2012).

VA death benefits may be paid to a surviving spouse who was married to the veteran (1) before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated; (2) for 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. §§ 1102, 1304, 1541 (2012); 38 C.F.R. § 3.54 (2017). For VA purposes, a marriage is considered 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 U.S.C. § 103 (c) (2012); 38 C.F.R. § 3.1 (j) (2017).

To be recognized as a veteran's surviving spouse for the purpose of establishing entitlement to VA death benefits, the person's marriage to the veteran must meet the requirements of 38 C.F.R. § 3.1 (j) and be the spouse of the veteran at the time of the veteran's death. 38 U.S.C. § 101 (3) (2012); 38 C.F.R. § 3.50 (b)(1) (2017). The surviving spouse must also have lived with the veteran continuously from the date of the marriage to the date of the veteran's death except, as provided in 38 C.F.R. § 3.53 (a) (2017), where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse; and the claimant cannot have remarried since the death of the veteran and after September 19, 1962, or lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. §§ 3.53, 3.55 (2017).

1. Entitlement to recognition as the surviving spouse as defined by the Department of Veterans Affairs (VA) for eligibility to Dependency and Indemnity Compensation (DIC) benefits

The evidence of record reflects that the appellant first married in June 1986 and divorced in 1992; thereafter they married in March 1998 and then divorced in 2007.  At the time of the Veteran's death in June 2017, he and the appellant remained divorced.  

The appellant asserts that she and the Veteran had a "common law" marriage that lasted for more than one year prior to his death, the Board finds that the preponderance of the evidence weighs against such a finding, which reasons are explained below.

The appellant acknowledges that she and the Veteran had not been married for approximately a decade at the time of his death; however, she has asserted in two statements that she believes they had a common law marriage and that she was unaware that Missouri does not recognize such a union.  However, in her statements she does not indicate whether the Veteran also held that same belief about their relationship.  In fact, she has contradicted these statements with her testimony before the Board.  At her hearing she noted that while, in passing people did not know they were divorced, that she and the Veteran knew they were.  Additionally, while the appellant indicated that she and the Veteran lived together for the entirety of their relationship, the record indicates otherwise, based on the fact that VA documents sent to the Veteran in 2007 at an address different from the appellant's address of record.  However, it does appear that the Veteran and appellant resided at one address beginning in December 2011, when the appellant was appointed as the Veteran's custodian, replacing the Veteran's mother who had been custodian for the him in the year prior. 

The Board has also reviewed and considered statements submitted by the Veteran and appellant's son's fiancé, and an acquaintance from their church.  In both statements, the authors indicate that Veteran and appellant loved and cared for each other and were always together.  The statement from the son's fiancé indicates that she believed they lived together as husband and wife.  However, there is no indication that the appellant and Veteran considered themselves to be married, either by law or common law. 

To the extent that the above statements attempt to assert that the appellant and Veteran were holding themselves out as husband and wife for years prior to the Veteran's death, the Board is mindful that the state of Missouri (where the appellant and Veteran resided) does not recognize common law marriage. Moreover, the above reports are inconsistent with other evidence of record.  For example, social security profile records obtained after the Veteran's death show that the Social Security Administration did not consider the Veteran to be married.  Additionally, in a submitted form seeking benefits following the Veteran's death, the appellant listed her relationship to the Veteran as a caregiver and fiduciary, not as his widow or ex-wife.  Moreover, the Veteran's son filed an application for burial benefits in the month following the Veteran's death and listed himself as the next of kin.  While private treatment records from early June 2017 refer to the appellant as the Veteran's wife, treatment records from June 23, 2017, document the appellant's statement that she is the Veteran's ex-wife and had been attempting to care for him.   

Based upon the evidence of record, including as discussed above, the Board finds that the appellant and Veteran were not married at the time of the Veteran's death in June 2017.  

In conclusion, the criteria for establishing surviving spouse status have not been met, and the appellant is not a proper claimant for death pension benefits. Accordingly, the appeal must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  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.

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Q. Hernan, Attorney Advisor