Citation Nr: A24029780 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 201102-117474 DATE: June 6, 2024 ORDER Recognition of the appellant as the Veteran's surviving spouse for purposes of dependency and indemnity compensation (DIC) is denied. ? FINDINGS OF FACT 1. The Veteran and the appellant married in accordance with Nevada state law on June [REDACTED], 2013. 2. The Veteran died on February [REDACTED], 2014. 3. The Veteran and the appellant began living together on January [REDACTED], 2013. 4. The state of Nevada, where the Veteran and appellant lived for the entirety of the relevant period, does not recognize common law marriage. 5. The appellant, despite being afforded ample time, has not indicated that she was unaware of this legal impediment to a common law marriage until June 2020; however, the evidence does not suggest that she was living with the Veteran as man and wife prior to February 10, 2013. CONCLUSION OF LAW The criteria for recognition of the Appellant as the Veteran's surviving spouse for purposes of dependency and indemnity compensation (DIC) have not been met. 38U.S.C. §§101, 103, 5107; 38C.F.R. §§3.1, 3.50, 3.52, 3.102 REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February1969 to February 1971. He died on February [REDACTED], 2014. The case is on appeal from a July 2020 decision. In a November 2020 notice of disagreement (NOD) (VA Form 10182, Decision Review Request: Board Appeal), the appellant requested the Direct Review. The Board notes that the evidentiary window based on the appellant's selection is limited to the evidence of record as of the date the AOJ issued notice of the applicable decision. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. Evidence was added to the claims file during a period of time when new evidence was not allowed. If the appellant would like VA to consider any evidence that was submitted that the Board could not consider, the appellant may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Recognition of the appellant as the Veteran's surviving spouse for purposes of dependency and indemnity compensation. The appellant asserts she is the Veteran's surviving spouse for compensation purposes. Previously, in an April 2020 decision, the Board denied the claim in the Legacy system. The July 2020 decision on appeal addressed the claim on the merits. Thus, the Board need not address whether new and relevant evidence is necessary to adjudicate the claim on the merits. There are three critical dates of record: the Veteran and the appellant began cohabitating on January [REDACTED], 2013 and according to the appellant were living as husband and wife; the Veteran and the appellant were married under the laws of the state of Nevada on June [REDACTED], 2013; and the Veteran passed away on February [REDACTED], 2014. When a Veteran dies, his or her surviving spouse may be eligible for VA death benefits, to include dependency and indemnity compensation (DIC), death compensation, and death pension. See 38 U.S.C. §§1121, 1310, 1541; 38C.F.R. §3.50(a). Consequently, "surviving spouse" status is a threshold requirement for both DIC and death pension benefits. For a person to establish recognition as a surviving spouse of a deceased Veteran, there must be evidence of a valid marriage to the Veteran under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). A surviving spouse for VA purposes is defined as a person whose marriage to a 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; and (1) 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 fault of the spouse; and (2) has not remarried or has not since the death of the Veteran lived with another person and held himself/herself out openly to the public to be the spouse of such other person. See 38C.F.R. §§3.50(b), 3.53. The validity of a marriage is determined based upon the law of the jurisdiction where the parties resided at the time of marriage or when the rights to benefits accrued. 38 U.S.C. § 103(c); 38C.F.R. §3.1(j). A valid marriage may be established by various types of documentary evidence together with the claimant's certified statement concerning the date, place and circumstances of dissolution of any prior marriage, provided that such facts, if they were to be corroborated by record evidence, would warrant acceptance of the marriage as valid. 38C.F.R. §3.205. Critical here are the requirements of section 3.54 for a surviving spouse to qualify for DIC compensation. The potentially applicable issue is under section 3.54(b), whether the appellant was married to the Veteran for one year or more prior to his death. If the Veteran and appellant were married for less than one year prior to his death, DIC compensation is not available. As the record indicates that the date of the marriage certificate is June [REDACTED], 2013 (within one year of the Veteran's death), the only possibility is the establishment of a common law marriage prior to one year from the Veteran's death (February [REDACTED], 2013). As noted in the previous AOJ decisions, Nevada did not (and does not) recognize common law marriage. See Nev. Rev. Stat. § 122.010 ("no common-law marriages after March 29, 1943"). However, section 3.52 provides a potential exception where VA would recognize "an attempted marriage" for VA compensation purposes if the appellant "entered into the marriage without knowledge of the impediment" (among other requirements that appear to have been met). 38 C.F.R. § 3.52(b). In short, if the appellant believed that she and the Veteran were entering into a common law marriage on January [REDACTED], 2013 or any time prior to February 10, 2013, then compensation may be available. In a June 2020 submitted lay statement from, B.B., he informed that the Veteran moved in with the appellant on January [REDACTED], 2013, and were married on June [REDACTED], 2013. In a June 2020 statement from the appellant, she informed that her and the Veteran always planned to get married, but the subject of common law marriage never came up in discussions about living together or getting married, as neither of them had any idea about whether or not common law marriage was legal in Nevada. In consideration of this information, the Veteran and appellant began living together on January [REDACTED], 2013. They married under the laws of Nevada, their state of residence, on June [REDACTED], 2013. The Veteran passed away on February [REDACTED], 2014, within one year of the legal marriage of the Veteran and appellant. Despite the appellant's assertions that they lived together as man and wife for the entirety of their time cohabitating, the state of Nevada does not recognize common law marriage and the Appellant had failed to indicate that she was unaware of the legal impediment to common law marriage until June 2020, after the Board issued its original decision in April 2020 stating that fact. Nevertheless, while the Board does acknowledge the appellant's new assertion that she was unaware of the legal impediment to common law marriage, she has not submitted convincing documentary evidence, such as joint banks accounts or other such records, to show that she and the Veteran were living as man and wife prior to February [REDACTED], 2013 (one year prior to the Veteran's death). 38 C.F.R. § 3.205. Further, the Board notes the appellant's own assertion on the VA Form 21-4170, in section 8: "What Did You Agree Your Relationship Would Be At The Time You Began Living Together" -she responded "that we were going to marry;" and the assertion on the VA Form 21-4138 that "[w]e had always planned on getting married. We did get married on 06/[REDACTED]/2013." These statements suggest an acknowledgement that the Veteran and the appellant were not married at the time of cohabitation, but rather anticipated marriage in the future. To reiterate, the evidence is clear in that the Veteran and the appellant were married for less than a year at the time of his death. 38 C.F.R. § 3.54(b). Their state of residence, Nevada, did not recognize common law marriage and the appellant's assertion that she was unaware of this impediment is not convincing given the evidence does not reveal any documentary evidence supporting her assertion and the statements from two friends that they were living as man and wife one year prior to the Veteran's death. As such, the appellant may not be recognized as the surviving spouse for DIC compensation purposes. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carter, B. 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.