Citation Nr: 21041426 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-06 530 DATE: July 9, 2021 ORDER Entitlement to recognition of the appellant as the surviving spouse of the Veteran for Department of Veterans Affairs (VA) death benefits is denied. FINDINGS OF FACT 1. The Veteran and the appellant were married in November 1993. 2. The Veteran and the appellant did not have a child born of their union. 3. The Veteran died in March 1994. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran's surviving spouse for purposes of VA survivor benefits have not been met. 38 U.S.C. §§ 101, 103, 1304, 5124, 5107; 38 C.F.R. §§ 3.1 (j), 3.50, 3.52, 3.53, 3.54, 3.204, 3.205. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served from October 1954 to May 1957. The Veteran died in March 1994. Survivor Benefits Generally The appellant seeks recognition as the Veteran's surviving spouse in order to obtain survivor benefits. Survivor benefits include dependency and indemnity compensation (DIC) benefits, VA death pension benefits, and VA death compensation, as described below. DIC benefits may be paid to the surviving spouse of a veteran who died from a service-connected disability. 38 U.S.C. § 1310. A "surviving spouse" is a person (1) whose marriage to a veteran meets the requirements of 38 C.F.R. § 3.1 (j); (2) who was married to the 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 death (barring circumstances not applicable here); and (4) has not remarried since the veteran's death. See 38 U.S.C. § 101 (3); 38 C.F.R. § 3.50 (b). Under § 3.1(j), "[m]arriage 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). For marriages that occurred after the veteran's discharge from service, entitlement to dependency and indemnity compensation benefits also requires, as relevant here, that the surviving spouse be married to the veteran for at least one year prior to the veteran's death. 38 U.S.C. § 1304 (2); see 38 C.F.R. § 3.54 (c)(2). VA death pension benefits may be paid to a surviving spouse who was married to the 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; or (3) in the case of Vietnam era Veterans, prior to May 8, 1985. 38 U.S.C. § 1541; 38 C.F.R. § 3.54 (a). VA death compensation may be paid to a surviving spouse, who, with respect to date of marriage could have qualified as a surviving spouse for death compensation under any law administered by VA in effect on December 31, 1957, or who was married to the Veteran: (1) Before the expiration of 15 years after termination of the period of service in which the injury or disease which caused the Veteran's death or injury was incurred or aggravated; or (2) 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; 38 C.F.R. § 3.54 (b). DIC benefits are payable to a surviving spouse who was married to the Veteran: (1) within 15 years of the end of the period of service in which the injury or disease causing the Veteran's death was incurred or aggravated; or (2) 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. § 1304; 38 C.F.R. § 3.54 (c). Consequently, status as a surviving spouse of the Veteran is a threshold requirement for DIC, death compensation, and death pension benefits. Analysis The appellant claims entitlement to survivor's benefits as the surviving spouse of the deceased Veteran. 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 law 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); see Burden v. Shinseki, 727 F.3d 1161 (Fed. Cir. 2013) (stating that under 38 U.S.C. § 103 (c), "state law, including state law evidentiary burdens, must be applied in determining the validity of a purported common law marriage"). After thorough review of the evidence of record, the Board finds that the statutory requirements for recognition of the appellant as the surviving spouse of the Veteran have not been met. Here, the evidence establishes that the Veteran and appellant were married in November 1993, and the Veteran died in March 1994. Thus, their marriage lasted less than one year prior to the Veteran's death (approximately four months). Additionally, such marriage was not within 15 years of the end of the period of service in which the injury or disease causing the Veteran's death was incurred or aggravated. On her January 2016 VA Form 9, the appellant asserted that she lived with the Veteran for more than four years, up to, and including, the date of his death. She has not alleged that they were in a common law marriage prior to their marriage ceremony; the state of Arkansas does not recognize common law marriage. Since the state of Arkansas does not recognize common law marriage, there is an obvious legal impediment to a common law marriage of the appellant and the Veteran. VA, however, nonetheless will recognize marriages that were invalid by reason of legal impediment provided the appellant sufficiently demonstrates the requirements under 38 C.F.R. § 3.52 for deeming a marriage valid that is invalid due to legal impediment. Section 3.52 provides that, 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: (a) the marriage occurred one year or more before the veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage (see § 3.54(d)), (b) the claimant entered into the marriage without knowledge of the impediment, (c) the claimant cohabited with the Veteran continuously from the date of marriage to the date of his or her death as outlined in § 3.53, and (d) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the Veteran's death. 38 C.F.R. § 3.52. Here, the appellant asserts that she and the Veteran lived together continuously for four years prior to the Veteran's death, including during their marriage. Further, no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the Veteran's death. However, the appellant and the Veteran were married for only four months prior to the Veteran's death, and there was no child born out of the relationship between the appellant and the Veteran. The record contains no evidence that they held themselves out as husband and wife before the legal marriage ceremony. As such, the appellant does not meet the requirements under 38 C.F.R. § 3.52 for deeming a marriage valid. The undisputed facts in this case establish as a matter of law that the appellant is not entitled to recognition as the Veteran's surviving spouse for purposes of VA death benefits. The Board sympathizes with the appellant's situation, however, under the statutes and regulations there is no choice but to find that entitlement to DIC benefits as the Veteran's surviving spouse is not warranted. Where, as here, the law and not the evidence is dispositive, the appeal must be denied for failure to state a claim upon which relief may be granted. Sabonis v. Brown, 6 Vet. App. 426 (1994). The benefit of the doubt doctrine is inapplicable because the issue involves the appellant's status as a claimant. See, e.g., Rogers v. Derwinski, 2 Vet. App. 419, 422 (1992). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.Z., 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.