Citation Nr: 22018706 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-02 171 DATE: March 30, 2022 ORDER Entitlement to recognition as the Veteran's surviving spouse for the purpose of receiving VA death benefits is denied. Entitlement to Dependency and Indemnity Compensation (D.I.C.) based on service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The appellant and the Veteran were married in December 1969 and divorced in the 1990s. 2. The appellant and the Veteran subsequently did not enter into a common-law marriage. 3. The appellant is not the Veteran's surviving spouse. CONCLUSIONS OF LAW 1. The criteria for entitlement to recognition as the Veteran's surviving spouse for the purpose of receiving VA death benefits have not been met. 38 U.S.C. §§ 101(3), 103, 1310, 5107; 38 C.F.R. §§ 3.1 (j), 3.50, 3.52, 3.205. 2. The criteria for entitlement to D.I.C. benefits have not been met. 38 U.S.C. §§ 1310, 5107(b); 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to September 1971. The appellant claims to have been the Veteran's common law spouse. This matter is on appeal from a May 2016 rating decision. In November 2021, the appellant had a hearing before the undersigned Veterans Law Judge. 1. Entitlement to recognition as the Veteran's surviving spouse for the purpose of receiving VA death benefits. The appellant has asserted that she should be recognized as the deceased Veteran's surviving spouse for the purpose of establishing entitlement to DIC benefits, because after their divorce she never remarried and claims to have continued to live off and on with the Veteran depending on his mental health issues. She further contends that after the divorce she and the Veteran should be recognized as having been common law married in the state of Pennsylvania. 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. See 38 U.S.C. § 101(3); 38 C.F.R. § 3.50. Determining whether a person is a surviving spouse for DIC benefits is a question of fact subject to the "clearly erroneous" standard of review. Dedicatoria v. Brown, 8 Vet. App. 441, 443 (1995). The evidence of record shows that the Veteran was married to the appellant, but they were divorced in the 1990s. The appellant confirmed as much during the November 2021 Board hearing and the Veteran confirmed it during his VA medical treatment. The evidence does not show that the divorce decree was set aside by a court of competent jurisdiction at any time prior to the Veteran's death and there is simply no provision under VA law to recognize a surviving spouse based upon marital status prior to the Veteran's death. See 38 U.S.C. § 101(3); 38 C.F.R. § 3.50. Rather, a surviving spouse for VA purposes must be married to the Veteran at the time of the Veteran's death. Id. In this case, the appellant does not contest that her marriage to the Veteran was terminated by divorce prior to the Veteran's death. Rather, she asserts that after the divorce she and the Veteran would sometimes cohabitate, and she should be considered the Veteran's common law wife. Although 38 C.F.R. § 3.50(b)(1) has a provision relating to the misconduct of the Veteran, and lack of fault of the spouse, this provision serves only as a limited exception to the requirement that a person seeking surviving spouse status have lived with the veteran continuously from the date of marriage to the date of the veteran's death. Specifically, there must be the existence of a valid marriage between the Veteran and the person claiming status as a surviving spouse at the time of the Veteran's death and, the Veteran and the person claiming status as a surviving spouse continuously cohabitated during the marriage up until the time of the Veteran's death, subject to certain exceptions, including separation, which was due to the misconduct of, or procured by, the veteran without the fault of the spouse. See 38 C.F.R. §§ 3.50(b)(1), 3.53(a). Again, those provisions only cover situations where the parties were separated but still legally married at the time of the veteran's death. They do not override or provide an exception to the fundamental requirement that the parties still be married at the time of the Veteran's death. See 38 C.F.R. § 3.50 (b)(1) (expressly defining "surviving spouse" as someone "who was the spouse of the veteran at the time of the veteran's death"). The Board recognizes the appellant's arguments that the divorce was due to no fault of her own as she feared that the Veteran would be abusive during a mental health episode; however, even if that were the case, the regulations require that a claimant be legally recognized as the veteran's spouse at the time of the veteran's death. The United States Court of Appeals for the Federal Circuit (Federal Circuit), in Haynes v. McDonald, 785 F.3d 614 (Fed. Cir. 2015), addressed the impact of misconduct upon the marriage requirement. The Federal Circuit affirmed a decision of the Court of Appeals for Veterans Claims (Court) that interpreted 38 C.F.R. § 3.50(b)(1) to require that a veteran and claimed surviving spouse be married at the time of the veteran's death. Id. at 616. The Federal Circuit stated that the Court did not err in holding that there was no exception to the marriage requirement when a veteran and former spouse divorced based on abuse. Id. The Board will thus consider the appellant's contention that she was common law married to the Veteran. In a July 2017 administrative decision, the RO found that the appellant cannot be recognized as the legitimate surviving spouse of the Veteran on the basis that a common law marriage cannot be established where there is a lack of continuous cohabitation. The decision further noted that there are three elements to establish a common law marriage. There must be an agreement between the parties to be married; there must be cohabitation and the couple must hold themselves out to the public as married. All three elements are required to establish a common law marriage. In determining whether a marriage is valid, the law of the place where the parties resided will be applied. 38 C.F.R. § 3.1(j). As the parties in the case at hand resided in Pennsylvania, the laws of that state are applicable. Additionally, the Board notes that Pennsylvania law has deemed that no common-law marriage contracted after January 1, 2005, shall be valid, but did not render any common-law marriage otherwise lawful and contracted on or before January 1, 2005 invalid. 23 Pa. C.S.A. § 1103. Thus, in order for the appellant to be deemed to have been common law married, the appellant would have had to meet the three requirements for common law marriage prior to January 1, 2005 and have cohabited with the Veteran continuously prior to his 2015 death. Where an attempted marriage of a claimant to a veteran is invalid by reason of a legal impediment, the marriage will nevertheless be deemed valid if: (1) the marriage occurred 1 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, and (2) the claimant entered into the marriage without knowledge of the impediment, and (3) the claimant cohabited with the veteran continuously from the date of marriage to the date of his or her death, and (4) 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 "legal impediment" to include the requirement of a marriage ceremony by a jurisdiction that does not recognize common-law marriages. VAOPGCPREC 58-91. "The determination of a claimant's knowledge of a legal impediment is viewed in terms of 'what the appellant's state of mind was at the time that the invalid marriage was contracted.'" See Lamour v. Peake, 544 F.3d 1317, 1323 (Fed. Cir. 2008) (quoting Dedicatoria v. Brown, 8 Vet. App. 441, 444 (1995)). In other words, if the appellant intended to enter a common-law marriage with the Veteran without, at that time, knowledge of the fact that the state in which they resided did not recognize common-law marriage, the marriage could be deemed valid for VA purposes. See 38 U.S.C. § 103(a); 38 C.F.R. § 3.52. Under 38 C.F.R. § 3.53(a), the requirement that there be continuous cohabitation from the date of marriage to the date of death of the veteran will be considered as having been met when the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. Temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation. For purposes of establishing proof of a common-law marriage, the supporting evidence should include affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places, and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parties held themselves out as husband and wife, and whether they were generally accepted as such in the communities in which they lived. 38 C.F.R. § 3.205(a)(6)-(7). When a surviving spouse submits proof of marriage and meets the requirements for a deemed valid marriage, VA will accept the surviving spouse's statement that he or she had no knowledge of an impediment to marriage, absent information to the contrary. 38 C.F.R. § 3.205(c). The Board finds that the requirements for deeming a common law marriage valid in this case have not been met. The appellant and Veteran were divorced in the 1990s, this legal divorce has not been disputed. The Veteran's death occurred in 2015. Although the appellant claims that she and the Veteran entered a common law marriage in 2004 (prior to the change of law in Pennsylvania), the Board finds that she had not cohabited with the Veteran continuously from the date of that purported marriage to the date of his death, that they had not held themselves out as married from that date, and that they had not generally been accepted as such in the communities in which they lived. The Board notes that the only statements provided in support of the appellant's claims are her own lay statements and an April 2017 statement from her sister S.D. S.D. reported that the Veteran and the appellant had "always lived together after marriage." She indicated they would refer to themselves as husband and wife from 1971 to the present. S.D.'s statement of continuous cohabitation and holding themselves out as married contrasts with the appellant's own statements and other evidence of record. In an April 2017 statement, the appellant claimed that she and the appellant lived together from January 2000 to June 2000, November 2004 to January 2007, and from December 2013 to November 2015. She stated that they lived "common law after divorce which PA did not abolish until 2005. So technically I was still married." In a May 2017 statement, she claimed that there was no lease agreement with her on it because the Veteran had signed it when he first moved in, and the landlord never specified anything about her living with the Veteran. Such a statement appears to indicate she had not been living with the Veteran when he sought residence at his last domicile, despite her claim that they were already holding themselves out as married at that point. In a May 2017 statement, the appellant then claimed she lived with the Veteran from December 2013 to November 2015 but stopped because "he became unbearable to live with" and that she had "[l]eft 1 month before he passed away." In a May 2017 VA Form 9, she claimed that we were divorced in 1990, but "began to co-habitate as common law couple in 2003 until veterans death." In an August 2017 VA Form 9, she claimed that she complained that when they were divorced "I had no child support or spousal support. My children were still underage." The Board finds that the appellant is not credible as to her reports of either an agreed common law marriage or cohabitation. The appellant's lay statement does not correspond to that of S.D. as to cohabitation. The appellant was also inconsistent with her own statements. Moreover, the appellant's lay statements do not correspond to the Veteran's VA medical records wherein he discussed both his relationship with his ex-wife/the appellant and their subsequent divorce. In a November 2021 Board hearing, the appellant claimed that she and the Veteran separated in 1990 and that they started cohabitating again in the 1990s. In contrast, in a March 1985 VA medical record, the Veteran reported that he had been separated from his wife for a year, but that she was willing to reconcile. Then, in an October 1990 VA medical record the Veteran reported that he had been separated with his wife since 1986. Such a statement is consistent with a November 1987 statement from the Veteran that he was no longer with the appellant. In a January 1988 statement, the Veteran continued to indicate that the Veteran was separated from the appellant. In a September 1992 VA medical record, the Veteran reported that his divorce was through and that he had learned that his ex-wife (the appellant) had been released from jail for fraud. In a March 1995 VA medical record, the Veteran reported that his ex-wife (the appellant) who he divorced was a professional thief. The Board further finds that the appellant did not have a lot of knowledge of the Veteran after their divorce, including from the time periods the appellant purportedly claims to have cohabitated with the Veteran and claimed to have a common law marriage with him. In her May 2017 statement, she claimed the Veteran "never went to or saw a V.A. psych. Dr." However, as documented above, there are several years of VA psychiatric treatment records, including from around the time frame the appellant is claiming she reconnected with the Veteran. She also said in that lay statement that the Veteran "always said and thought 'If I get insurance somebody will try to kill me.'" In a September 2003 correspondence; however, the Veteran himself wrote to VA requesting a copy of his DD 214 because he wanted to buy insurance. In a January 2016 lay statement, she further reported that the Veteran's cousin, was supposed to collect the Veteran's pension, but did not know why the cousin was the beneficiary, despite her current claim that she and the Veteran held themselves out as married prior to the Veteran's death. Although the Board cannot know why the Veteran would have named his cousin as his beneficiary if he was in a marital relationship as claimed by the appellant, the Board notes that in a December 1995 VA medical record he essentially claimed that his cousin was his main family not the appellant. Even if, for the sake of argument, the Board were to accept the appellant's claim that the Veteran and the appellant lived together at times after their divorce, merely being cohabitators does not in and of itself confer marital status, either civil/ceremonial or common law. Here, the most probative and credible evidence of record indicates the Veteran, and the appellant did not enter a common-law marriage after their divorce in the 1990s. Rather, the record is clear that they did not hold themselves out as common law married after their divorce. The December 2015 death certificate emphasized this fact as it listed that the Veteran was divorced at the time of his death and that there was no surviving spouse, as informed by the Veteran's own daughter. Thus, a deemed valid marriage cannot be established, and the appellant's claim for recognition as surviving spouse is denied. Finally, the Board notes that the appellant asserted that she is entitled to the benefits sought because the Veteran did not pay alimony or child support after their divorce, even though her children were underage per her report. The Board sympathizes with the appellant. However, the Board, is bound by the law and is without authority to grant benefits on an equitable basis, regardless of financial need. See 38 U.S.C. §§ 511, 7104); see also Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) (VA cannot "extend... benefits out of sympathy for a particular [claimant]" and further noting that a law that is plain is binding, and leaves nothing for interpretation.). The Board further observes that "no equities, no matter how compelling, can create a right to payment of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). The Board does note, however, that given that the Veteran's youngest child was over 18 years old at the time of the divorce no child support would have been owed. As the evidence persuasively favors denial of the claim, the Board finds that the benefit of the doubt does not apply. The Board finds that the appellant is not the Veteran's surviving spouse for VA purposes. 2. Entitlement to D.I.C. based on service connection for the cause of the Veteran's death. During the November 2021 Board hearing, the appellant claimed that the Veteran's death was caused by herbicide agent exposure while the Veteran was stationed in the United States. Dependency and Indemnity Compensation (D.I.C.) may be awarded to a Veteran's surviving spouse for death resulting from a service-connected or compensable disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. For such a benefit to be granted, a service-connected disorder must have caused death, or substantially or materially contributed to it. Id. A service-connected disorder is one that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. The threshold question that must be addressed in any claim for VA benefits is whether the person seeking the benefit is a proper claimant for the benefit sought. If the appellant is not established as a proper claimant, the claim can proceed no further. The appellant has the burden to establish her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). (Continued on the next page) As explained in the above decision, the Board has found that the appellant is not the Veteran's surviving spouse. As such, she is not a proper claimant and her claim for D.I.C. benefits is denied. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lindio 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.