Citation Nr: 22069080 Decision Date: 12/15/22 Archive Date: 12/15/22 DOCKET NO. 17-56 081A DATE: December 15, 2022 ORDER Entitlement to death pension is denied. FINDINGS OF FACT 1. The Appellant and Veteran were legally married on April [REDACTED], 2002, then divorced on November [REDACTED], 2012. 2. The Appellant and Veteran legally remarried on February [REDACTED], 2017. 3. The Veteran died on February [REDACTED], 2017. 4. From November [REDACTED], 2012, to the date of the Veteran's death on February [REDACTED], 2017, the Veteran and the Appellant resided in South Dakota. 5. A common law marriage in South Dakota is only recognized if it was consented to and subsequently consummated prior to July 1, 1959. 6. There is no evidence or allegation that a child was born to the Appellant and Veteran. CONCLUSION OF LAW The criteria for entitlement to death pension have not been met. 38 U.S.C. §§ 101(3), 103, 1541; 38 C.F.R. §§ 3.1(j), 3.3(b)(4), 3.50, 3.52, 3.53, 3.54. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1971 to August 1973 and February 1976 to June 1980. The Veteran, unfortunately, died on February [REDACTED], 2017. The Appellant is his spouse. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2017 rating decision issued by the Department of Veterans Affairs (VA). See September 2017 Notice of Disagreement (NOD); October 2017 Statement of the Case (SOC); November 2017 Substantive Appeal (VA Form 9). The Appellant testified before the undersigned Veterans Law Judge in an October 2020 hearing. See October 2020 Hearing Transcript. Entitlement to death pension. The Appellant asserts entitlement to death pension. March 2017 VA Form 21-532. She testified that she was married the Veteran in April 2002, but they divorced in November 2012 because it was more advantageous for the amount of Social Security and VA benefits they could receive. See October 2020 Hearing Transcript. She testified that they continued to provide care for each other and hold themselves out as husband and wife after the divorce. See id. She then remarried the Veteran on February [REDACTED], 2017, about a day prior to his death, per his last wish. See February 2017 Marriage Certificate; February 2017 Death Certificate; October 2020 Hearing Transcript. As an initial matter, the Board notes that the Veteran had no service connected disability and, thus, entitlement to death compensation or dependency and indemnity compensation are not at issue. Death pension may be paid to a surviving spouse of a veteran who was (1) married to the veteran before or during his or her service; (2) married to the veteran one year or more prior to his or her death if there was no child born to them before or during the marriage; (3) for any period of time if there is a child that was born to them before or during the marriage; or (4) prior to the following delimiting dates, if pension eligibility is based on service in such period of war: World War II conflict January 1, 1957; Korean conflict February 1, 1965; Vietnam era May 8, 1985; Persian Gulf War January 1, 200. See 38 U.S.C. § 1541; 38 C.F.R. § 3.54(a). For VA benefits purposes, a "surviving spouse" is a person who was married to the veteran at the time of his or her death, in a marriage that is valid under the law of the place where they resided at the time of marriage or when the right to benefits accrue, has continuously cohabitated with the veteran from the date of marriage to the date of his or her death, and has not remarried or held himself or herself out openly to the public to be the spouse of another person except as provided in 38 C.F.R. § 3.55. See 38 U.S.C. § 101(31); 38 C.F.R. §§ 3.50, 3.52, 3.53. In this case, the evidence supports that the Appellant is considered a surviving spouse. However, the Board finds that the persuasive weight of the evidence is against finding that the Appellant's marriages to the Veteran meet the requirements for entitlement to death pension. Neither of the dates of the Appellant's marriages to the Veteran were before or during his periods of service from August 1971 to August 1973 and February 1976 to June 1980. 38 C.F.R. §§ 3.54(a), (e); August 1973 DD Form 214; November 2012 Divorce Decree; February 2017 Marriage Certificate. The Appellant does not allege, and the evidence does not show, that there was a child born to them before or during either marriage. 38 C.F.R. § 3.54(a)(2) The Veteran's pension eligibility is based on his service during the Vietnam era and neither date of their marriages is prior to the May 8, 1985, delimiting date. 38 C.F.R. §§ 3.54(a)(3), (e); August 1973 DD Form 214; November 2012 Divorce Decree; February 2017 Marriage Certificate. Lastly, the Board finds that the Appellant was not married to the Veteran for at least the one-year immediately preceding his death. 38 C.F.R. §§ 3.54(a)(1); November 2012 Divorce Decree; February 2017 Marriage Certificate. While the Board recognizes that their first marriage, from April [REDACTED], 2002, to November [REDACTED], 2012, was for more than 10 years, they were not legally married for the one-year immediately preceding the Veteran's death as required. The Appellant remarried the Veteran on February [REDACTED], 2017, about a day prior to his death. See February 2017 Marriage Certificate; February 2017 Death Certificate. In addition, while the Board does not question that the Appellant and Veteran remained devoted to each other, cared for each other, and held themselves out as husband and wife after their November 2012 divorce and up until his death, the evidence shows that they were both residents of South Dakota during that time. A common law marriage in South Dakota is only recognized if it was prior to July 1959. See S.D. Codified Laws § 25-1-29 (2022). The Appellant was, thus, legally married to the Veteran for only one day during the one-year period prior to his death. The Board considered whether the South Dakota's requirement that a marriage be solemnized, authenticated, and recorded is an impediment that would allow for a possible common law marriage between the Appellant and Veteran to be deemed valid pursuant to 38 C.F.R. § 3.52. See Lamour v. Peake, 544 F.3d 1317 (Fed. Cir. 2008). But 38 C.F.R. § 3.52 requires that there be an attempt to marry, and that the claimant entered into the marriage without knowledge of the impediment. In this case, the Appellant testified that she and the Veteran specifically divorced in November 2012 because they did not want to be considered legally married for financial reasons. October 2020 Hearing Transcript. This evidence is strongly against finding that the Appellant was even attempting to enter into a common law marriage, let alone that she did so without knowledge that South Dakota law does not recognize common law marriages. The Board also considered the representative's contention that 38 C.F.R. § 3.55(a) and 38 U.S.C. § 103(b) should apply in this case and allow for entitlement to death pension benefits. See November 2017 VA Form 9; October 2020 Hearing Transcript. However, the provisions at 38 C.F.R. § 3.55(a) is about reinstatement of benefit eligibility when a surviving spouse remarries to another person after the veteran's death, which does not apply to this case. As for the provisions in 38 U.S.C. § 103(b) and 38 C.F.R. § 3.54(e) for a surviving spouse that has been legally married to a veteran more than once, it allows the use of the date of a prior marriage to the veteran to meet the statutory requirements that involve the "date of marriage," not the duration. In other words, the date of the Appellant's prior marriage to the Veteran from April 2002 to November 2012 was considered by the Board in its discussion above as to whether they were married before or during his period of service and whether they were married prior to the May 8, 1985, delimiting date. But the provision does not affect whether the Appellant was married to the Veteran for at least the one-year period immediately preceding his death. 38 C.F.R. § 3.55(a) and 38 U.S.C. § 103(b), therefore, do not allow for entitlement to death pension in this case. The Board is sympathetic to the Appellant's claim, but it is obligated to apply the relevant laws and regulations. Accordingly, the Board finds that entitlement to death pension is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lin, M 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.