Citation Nr: 22034603 Decision Date: 06/14/22 Archive Date: 06/14/22 DOCKET NO. 18-29 652 DATE: June 14, 2022 ORDER 1. Entitlement to recognition as the Veteran's surviving spouse for the death benefits purposes is denied. 2. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The Veteran died in December 2017, less than one year after a marrying the appellant. 2. The Veteran did not have a claim pending at the time of his death. CONCLUSIONS OF LAW 1. The criteria for recognition of the appellant as the surviving spouse of the Veteran for the purpose of VA death benefits have not 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. 2. The criteria for accrued benefits are not met. 38 U.S.C. §§ 5107, 5121, 7105; 38 C.F.R. §§ 3.102, 3.1000, 20.200, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1961 to June 1965. He died in December 2017. The case is on appeal from a February 2018 decision. In November 2021, the appellant and a witness testified at a Board hearing before the undersigned Veterans Law Judge. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Death Benefits 1. Entitlement to recognition as the Veteran's surviving spouse for the death benefit purposes. Legal Criteria When a veteran dies, his or her surviving spouse may be eligible to VA death benefits, to include DIC benefits, death compensation, and death pension. VA death benefits may be paid to a surviving spouse who was married to a veteran: (1) before the expiration of 15 years after the termination of the period of service in which the injury of disease causing death was incurred or aggravated, (2) one year or more prior to the Veteran's death, 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, 1304, 1541; 38 C.F.R. § 3.54. The term "surviving spouse" means a person who was married to the veteran at the time of the veteran's death, who lived with the veteran continuously from the date of marriage to the date of death (with limited exceptions), and has not remarried since the veteran's death. 38 U.S.C. § 101(3); 38 C.F.R. §§ 3.50, 3.53. The State of Florida does not recognize common-law marriage. See Fla. Stat. § 741.211 (providing common-law marriages entered into after January 1, 1968 are invalid). However, VA's General Counsel has held that an appellant's lack of knowledge that a common law marriage was not recognized by the appropriate jurisdiction is a legal impediment that does not necessarily bar recognition of the marriage for VA purposes. See VAOPGCPREC 58-91. Under 38 C.F.R. § 3.52, a common law marriage could be "deemed valid" on the theory that the surviving spouse could have entered into the purported common-law marriage without knowledge of the fact that there was an impediment to the marriage. Colon v. Brown, 9 Vet. App. 104 (1996). The impediment referred to here would be the jurisdiction's non-recognition of a common-law marriage. An attempted marriage will be "deemed valid" if: (a) the attempted marriage occurred one year or more before the Veteran died; (b) the claimant entered into the marriage without knowledge of the impediment; (c) the claimant cohabited with the Veteran continuously from the date of the attempted marriage until his death; and (d) no other claimant has been found to be entitled to gratuitous VA death benefits. 38 U.S.C. § 103(a); 38 C.F.R. § 3.52. In addition, in order for a common-law marriage to be established for VA purposes, 38 C.F.R. § 3.205(a)(6) requires two or more affidavits or certified statements from persons who know as the result of personal observation the reputed relationship which existed between the appellant and the Veteran, including the periods of cohabitation, places of residences, whether the parties held themselves out as married, and whether they were generally accepted as such in the communities in which they lived. Analysis The appellant is seeking recognition as the Veteran's surviving spouse for death benefit purposes. In January 2018, she submitted a marriage certificate showing that she married the Veteran in October 2017. In a June 2018 VA Form 9, the appellant stated that she lived with the Veteran from October 2015 until his death. She also stated that she was on a joint rental lease, utility agreements, and a bank account with the Veteran. She further stated that the Veteran did not change the beneficiaries on his life insurance policies from his children to the appellant. In June 2018, the appellant also submitted a rental lease in both her name and the Veteran's name dated March 2016. The appellant further submitted statements from her mother, two sisters, and several friends, including one that testified at the November 2021 Board hearing. These statements report that the Veteran and the appellant had a loving relationship and lived together from 2015 until the Veteran's death. However, none of the statements state that the Veteran and the appellant intended to enter into a common-law marriage. In addition, the friend that testified at the Board hearing submitted a statement describing a trip he made to Italy with the Veteran in 2015. The friend reported that the Veteran stated he had credit problems and that wanted to wait to marry the appellant so her credit would not be affected. The friend also reported that the Veteran's credit score improved a couple years after this conversation. During the November 2021 Board hearing, the appellant reported living with the Veteran as husband and wife starting in 2015 and taking care of him throughout their relationship. The Board finds that the appellant does not qualify as the Veteran's surviving spouse for the purpose of VA death benefits. In this regard, the appellant married the Veteran less than one year prior to his death. In addition, the appellant has not claimed and the evidence does not indicate that the Veteran and appellant attempted to enter into a common-law marriage. In this regard, while they lived as husband and wife, none of the evidence of record indicates that the Veteran and appellant held themselves out to be married or were generally accepted as married in the communities in which they lived. Furthermore, the appellant's friend reported that the Veteran explicitly explained that to him in 2015 that he did not want to marry the appellant until his credit score improved and that this did not occur until 2017. Therefore, the evidence shows that the appellant married the Veteran less than one year prior to his death and that there was not an attempted common-law marriage. 38 C.F.R. §§ 3.52, 3.54. The Board is sympathetic to the appellant and has carefully reviewed the claims file and considered the extenuating financial and life circumstances. However, the Board finds that the evidence does not support the recognition of the appellant as the surviving spouse of the Veteran for the purpose of VA death benefits. As the evidence is persuasively against the claim, and there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. II. Accrued Benefits 2. Entitlement to accrued benefits. Legal Criteria Accrued benefits are periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid, that shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. While an accrued benefits claim is separate from a veteran's claim filed prior to death, the accrued benefits claim is derivative of the veteran's claim; thus, an appellant takes the veteran's claim as it stood on the date of death, but within the limits established by law. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). For a surviving spouse to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). For accrued benefit claims, the relevant evidence must have been associated with the claims file at the time of the Veteran's death or been in VA's possession even if not in the claims file. See 38 C.F.R. § 3.1000(a), (d)(4). To the extent that outstanding service treatment records (STRs) or VA records are associated with the file after the Veteran's death, such records are considered to be in the constructive possession of VA at the time of death. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a), (d)(4); see Hayes v. Brown, 4 Vet. App. 353 (1993). Analysis In January 2018, the appellant filed a claim for accrued benefits. During the August 2021 Board hearing, the appellant did not report that the Veteran had a claim for benefits pending at the time of his death. In addition, the appellant has not claimed and the file does not indicate that there are any outstanding unpaid VA benefits for the Veteran. The appellant has not claimed and there is no evidence indicating that the Veteran had outstanding benefits or a claim pending for VA benefits at the time of his death. See Jones, 136 F.3d at 1299. Accordingly, the evidence is persuasively against this claim. Therefore, as there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and accrued benefits are not warranted because there were no claims pending at the time of the Veteran's death. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield 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.