Citation Nr: 21040382 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-56 888 DATE: July 3, 2021 ORDER Entitlement to recognition of the appellant as the surviving spouse of the Veteran for the purpose of establishing entitlement to Department of Veterans Affairs (VA) Dependency and Indemnity Compensation (DIC) benefits is denied. FINDINGS OF FACT 1. The Veteran was discharged from service in August 1990. 2. The Veteran and the appellant were married in July 2015; no child was born of the marriage or to them before the marriage. 3. The Veteran died in July 2016, eight days short of the one-year anniversary of his marriage to the appellant. 4. The appellant's September 2016 claim for DIC benefits as a surviving spouse of the Veteran is not predicated on any theory involving the existence of a common law marriage between her and the Veteran prior to their marriage in July 2015, nor is there evidence to suggest they had a common law marriage, which is not recognized in the state in which they resided and married. CONCLUSION OF LAW The criteria for recognition as the surviving spouse of the Veteran for VA DIC benefit purposes have not been met. 38 U.S.C. §§ 101(3), 103, 1102, 1304, 1311; 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.54. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1962 to August 1990, and he died in July 2016. The appellant is his surviving spouse and seeks to be recognized as his surviving spouse for DIC eligibility purposes. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2016 VA Regional Office (RO) administrative determination. In May 2021, a virtual Board hearing was held before the undersigned. Entitlement to recognition of the appellant as the surviving spouse of the Veteran for the purpose of establishing entitlement to VA DIC benefits The appellant seeks to be considered the Veteran's surviving spouse for VA DIC benefit purposes. At the May 2021 Board hearing, it was acknowledged that the appellant and Veteran did not meet the requisite marriage duration requirement for eligibility for DIC benefits, but it was expressed that there might be hope for a "compassionate exception" to the legally mandated rule of at least one year of marriage in this case where the appellant decided to take the Veteran off life support before he died eight days before their one-year wedding anniversary. The threshold question in this case is whether the appellant is a proper claimant to receive VA DIC benefits as the surviving spouse of the Veteran. Governing law provides that benefits may be paid to the surviving spouse of a veteran if certain requirements are met. 38 U.S.C. §§ 1102, 1304, 1310, 1311. A "surviving spouse" is defined as a person who was 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 (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 who has not remarried or (in cases not involving remarriage) has not since the death of the veteran lived with another person and 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). To qualify as a surviving spouse, the person's marriage to the veteran must meet the requirements of either 38 C.F.R. § 3.1(j) or 38 C.F.R. § 3.52. 38 C.F.R. § 3.50(b). Under 38 C.F.R. § 3.1(j), a marriage is defined as "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 U.S.C. § 103(c). Under 38 C.F.R. § 3.52, 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 given certain circumstances to include the claimant entered into the marriage without knowledge of the impediment. 38 U.S.C. § 103(a). It is not in dispute that the appellant was the spouse of the Veteran at the time of his death. The surviving spouse of a qualified veteran is eligible to receive DIC benefits if the surviving spouse was married to the veteran and one of the following requirements is met: (1) they were married 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) they were married for one year or more; or (3) they were married for any period of time if a child was born of the marriage, or was born to them before marriage. 38 C.F.R. § 3.54(c). On careful review of the record and the appellant's unique circumstances, the Board is unable to find that the appellant meets any of the specific requirements to qualify as the surviving spouse of the Veteran for the purpose of establishing entitlement to VA DIC benefits. At the Board hearing, the undersigned expressed that research would be undertaken to discern whether there was any latitude to interpreting the governing law and regulations in this case, particularly with regard to the legally mandated requirement of one year of marriage prior to the Veteran's death. Testimony was elicited about the intent of the appellant and Veteran to marry before they did, and the appellant described the medical impediments that prevented them from marrying. She also related the circumstances of the Veteran's death, to include her very difficult decision to take the Veteran off life support when she did, which was mere days before their one-year wedding anniversary. The undersigned suggested certain evidence that might be helpful in the claim, to include evidence of their intent to marry before they did and the fact that it was the appellant's decision to remove the Veteran from life support (she subsequently submitted such evidence). The Board has given much consideration to all this evidence, but is unable to discover a way, under governing law, to find in favor of the appellant. The law is unambiguous and makes no allowances given the unique facts of her case. In applying the law to the facts in this case, the Board finds that the appellant does not meet any of the critical elements to qualify for DIC benefits under 38 C.F.R. § 3.54(c). The undisputed facts show the following. The Veteran served on active duty from August 1962 to August 1990, when he was discharged. After many years together including years in which they cohabitated and were engaged to be married, the Veteran and the appellant were married in July 2015. Thus, the appellant does not satisfy the element regarding marriage before the expiration of 15 years after the termination of the Veteran's period of service (for which a service-connected disability resulted in his death). Eight days prior to the one-year anniversary of the date of their marriage, the Veteran died in July 2016. Thus, the appellant does not satisfy the one-year marriage duration element. Finally, no child was born of the marriage, or to them before the marriage. Thus, the appellant does not satisfy the element regarding children from their relationship. To address the one-year marriage duration requirement, the appellant submitted several statements from individuals (mostly from the church she and the Veteran attended), attesting to the wedding she and the Veteran had planned to have prior to July 2015. Apparently, they had attended and completed pre-marital classes in 2014 with the intent to marry that same year; however, serious medical impediments faced by both the Veteran and the appellant delayed their wedding plans. The appellant maintains that, but for all the medical treatments including hospitalizations, they would have married sooner than in July 2015. In statements and testimony, the appellant described her role as the Veteran's primary caregiver for years before they married. Also, she shared in an October 2017 statement that had she known about the one-year marriage duration requirement at issue, she would not have done anything differently in terms of removing the Veteran from life support when she did, because she wanted what was in the Veteran's best interest and would not have kept him alive for financial gain. With the evidence showing that the appellant and Veteran were together from about 2008, were engaged to marry in about 2011, and had lived together starting in the spring of 2012 (as related in the appellant's October 2017 statement), the Board considered whether they might be deemed to have had a common law marriage prior to having their ceremonial marriage in July 2015. However, common law marriage is not legal in the state in which they resided and married. See Arizona Revised Statutes § 25-111.) Moreover, despite the legal impediment of Arizona not recognizing common law marriages created within the state, there is no evidence that the appellant and Veteran "attempted marriage" prior to their actual wedding date in July 2015, as contemplated in 38 C.F.R. § 3.52 (regarding marriages that can still be deemed valid where an attempted marriage was invalid by reason of a legal impediment). While they cohabitated for years and took preparatory, pre-marital classes, there is no evidence that they believed they had entered into a marriage without knowledge of the legal impediment (i.e., the appellant did not assert a belief that they had a common law marriage, in a state that did not in fact recognize such marriages). The Board has considered the circumstances whereby the appellant, eight days before her one-year wedding anniversary, decided to remove the Veteran from a ventilator that was sustaining him the last few days of his life (as recounted by the Veteran's cancer physician in a May 2021 statement). The corollary of such action appears to be that the Veteran's eventual demise was foreshortened, and that if she had not acted in such a compassionate way, the Veteran may have lingered in such a state until their one-year of marriage anniversary; and by extension, the appellant would then have met the one of year marriage requirement for entitlement to DIC. It is, of course, purely speculative whether the Veteran, who by had been battling stage IV metastatic lung cancer, would have survived another eight days on life support had the appellant not made the decision she had. Moreover, the governing law does not contemplate any exceptions where concessions may be made for waiving the one-year marriage duration requirement. In short, the appellant is essentially making an appeal for equitable relief based on falling a mere eight days short of the marriage duration requirement, because the governing law clearly mandates one year or more from the date of marriage to qualify for DIC. Equitable relief is solely within the discretion of the Secretary of VA and is not within the jurisdiction of the Board to grant. See McCay v. Brown, 8 Vet. App. 378 (1995); Harvey v. Brown, 6 Vet. App. 416 (1994); 38 C.F.R. § 2.7. The Board is very sympathetic to the appellant's claim. The Board finds that her devotion to the Veteran during his terminal illness is admirable and appreciates the distressing, end-of-life decisions she was compelled to make for him. Notwithstanding the foregoing, she regrettably does not meet the legal criteria for recognition as the surviving spouse of the Veteran for entitlement to DIC benefits. Accordingly, the appellant's claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). (Where, as here, the law is dispositive of a claim, it should be denied due to the absence of legal merit.) George R. Senyk Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debbie Breitbeil, 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.