Citation Nr: 22051147 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 19-10 512 DATE: September 8, 2022 REMANDED Whether the appellant can be considered the valid surviving spouse of the Veteran for VA benefits purposes is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1962 to May 1965. The Department of Veterans Affairs (VA) is grateful for his service. The Veteran died in October 2017. The appellant has submitted a claim for survivor benefits, claiming to have been the surviving spouse of the Veteran at the time of his death. The appellant testified before the undersigned Veterans Law Judge of the Board of Veterans' Appeals at a hearing conducted in June 2022. A transcript of the hearing is of record. Whether the appellant can be considered the valid surviving spouse of the vet for VA benefits purposes is remanded. A surviving spouse is defined as (1) a person in a recognized marriage for VA purposes; (2) who was the spouse of 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 the Veteran's death except, as provided in 38 C.F.R. § 3.53(a), where there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse; and (4) who, except as provided in 38 C.F.R. § 3.55, has not remarried or has not since the death of the Veteran, and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). One claiming to be the spouse of a veteran has the burden to come forward with a supporting evidence of a valid marriage under the laws of the appropriate jurisdiction. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). In January 2015, the Veteran submitted a Final Judgement of Divorce dated January 24, 2011, decreeing that the bonds of matrimony between the Veteran and the appellant were then severed. This accompanied a Status of Dependents Questionnaire, VA Form 21-0538, completed, signed, and filed by the Veteran in January 2015 in which he reported that he was not married and that he had no dependents. The VA Regional Office (RO) denied the current claim in August 2018 based on this evidence that the appellant and the Veteran were not married at the time of the Veteran's death. In her October 2018 notice of disagreement, in disagreement with the denial of survivor benefits, the appellant provided no contention of marital status contrary to the documented divorce decree. In a December 2018 report of contact, it is noted that VA telephonically contacted the Veteran's then-authorized representative, who informed that the appellant was contending she and the Veteran established a common-law marriage after their formal divorce. The VA representative informed that VA would send the appellant a request for required information to establish the contended common law marriage. The representative informed that the telephonic conversation satisfied the prior request for an informal conference. Subsequently in December 2018, the RO sent the appellant a letter requesting evidence supporting her contention of common law marriage subsequent to the divorce dissolving the marriage between her and the Veteran. The record does not reflect that the appellant submitted the requested evidence. However, at her June 2022 hearing before the undersigned, she testified that she and the Veteran had reconciled in the year subsequent to their divorce, and that she subsequently took care of the Veteran. Also at the hearing, she contended that she never received the December 2018 letter requesting evidence of the common law marriage. The Board concludes that it is reasonable to afford the appellant an additional opportunity to submit evidence in furtherance of her claim. The matter is REMANDED for the following actions: 1. Send the appellant a new copy of the December 2018 letter requesting that she provide evidence of common law marriage. Provide appropriate forms and instructions for purposes of supporting the contended common law marriage. 2. Thereafter, and after any other indicated development, readjudicate the appellant's claim. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.