Citation Nr: 22015443 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 16-28 410 DATE: March 17, 2022 ORDER Recognition as the Veteran's surviving spouse for the purpose of establishing entitlement to VA death benefits is granted. FINDING OF FACT 1. The appellant and the Veteran were legally married in July 1967, in Louisiana; and divorced in March 1993. 2. Beginning in 1993, the Veteran and the appellant continuously cohabitated and held themselves out as husband and wife until the Veteran's death in February 2011; the appellant lacked knowledge that a common-law marriage was not recognized in Louisiana when she entered into such cohabitation. 3. No other claim has been filed by anyone purporting to be a legal surviving spouse who has then been found entitled to VA benefits CONCLUSION OF LAW The criteria for recognition of the appellant as the surviving spouse of the Veteran for the purpose of VA death benefits have been met. 38 U.S.C. §§ 101, 103, 1102, 1304, 1541, 5107; 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.53, 3.54, 3.102, 3.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1964 to October 1968, and from September 1972 to February 1979. He died in February 2011. The appellant contends that she is entitled to VA death benefits as the surviving spouse of the Veteran. Specifically, she maintains that although their divorce was final in March 1993, they cohabited and lived as though they were still married beginning in January 1993. See March 2015 VA Form 21-534EZ, Application for DIC, Death Pension, and/or Accrued Benefits. To be recognized as the Veteran's surviving spouse for the purpose of establishing entitlement to VA death benefits, the appellant must be a person whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the Veteran at the time of the Veteran's death. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b)(1). In determining whether a marriage is valid, the law of the place where the parties resided will be applied, and one claiming to be the spouse of a veteran has the burden to come forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. See 38 C.F.R. § 3.1(j); Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). Louisiana state law does not recognize common law marriage. In Louisiana, both parties are required to participate and to be physically present at a marriage ceremony for a marriage to be valid. See La. Civ. Code Ann. art. 91. Nevertheless, 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 38 C.F.R. § 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. VA's Office of General Counsel has interpreted the term "legal impediment" under the above regulation to include a jurisdiction's nonrecognition of common law marriage. VAOPGCPREC 58-91 (July 17, 1991). The U.S. Court of Appeals for Veterans Claims held that where there is an impediment to entering into a common law marriage, if the appellant was unaware of the impediment, then an otherwise invalid common law marriage could be deemed valid. Colon v. Brown, 9 Vet. App. 104, 107-08 (1996); see also Lamour v. Peake, 544 F.3d 1317 (Fed. Cir. 2008). Where a surviving spouse submitted proof of marriage in accordance with 38 C.F.R. § 3.205(a) and meets the requirements of 38 C.F.R. § 3.52, the claimant's signed statement that she had no knowledge of an impediment to a marriage to the Veteran will be accepted, in the absence of information to the contrary, as proof of the fact. 38 C.F.R. § 3.205(c). Here, the record reflects that the appellant married the Veteran in July 1967. See July 1967 Marriage License. Their divorce was final in March 1993. See March 1993 Judgement of Divorce. The record also contains statements from the appellant and her children. In March 2015, the appellant indicated that she had been married to the Veteran until 1993, and that they reunited within one year, living as husband and wife, until his death. In a March 2015 statement, the appellant's children indicated that the appellant lived with and cared for the Veteran from 1993 until his death in 2011. In April 2015, the appellant's daughter, S.W., indicated that her parents lived together from February 9193 until her father's death in February 2011. She noted that they provided loving companionship to one another and were together for 43 years. In a May 2015 signed statement, the appellant indicated that she and the Veteran were not aware that common law marriage was not recognized in Louisiana, and that they believed that they were married under the law. She reiterated this in her August 2015 notice of disagreement. In June 2015, the appellant submitted a copy of a September 1996 letter signed by the Veteran. Therein, he refers to the appellant as his wife. Given the appellant's submission of statements attesting to the nature and length of her relationship and cohabitation with the Veteran, that they held themselves out as married, that she was unaware that common-law marriage is not recognized in Louisiana, and that there are no competing claimants, the Board finds that at the very least, there is an approximate balance of positive and negative evidence, and the Board affords the benefit of the doubt to the claimant. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. (Continued on the next page) Therefore, while the requirements are not met for a valid marriage for surviving spouse purposes, the facts of this case fall under the exception so that the invalid marriage is "deemed valid," with the same effect as if valid for VA purposes under 38 C.F.R. § 3.52. Accordingly, the claim of entitlement to recognition as the Veteran's surviving spouse for purposes of VA death benefits is granted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Barone, 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.