Citation Nr: 1435135 Decision Date: 08/06/14 Archive Date: 08/20/14 DOCKET NO. 08-32 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether the claimant may be recognized as the Veteran's surviving spouse for entitlement to Dependency and Indemnity Compensation (DIC), death pension, and accrued benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, G.S., and R.V. ATTORNEY FOR THE BOARD P. M. Johnson, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from December 1943 to January 1948, August 1950 to August 1951, May 1952 to November 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. Jurisdiction of the appellant's claim file is currently at the Waco, Texas RO. The appellant testified at a Travel Board hearing before a Veterans Law Judge in January 2011. Because this Veterans Law Judge is no longer employed by the Board, the Veteran was asked in May 2014 if she wished to appear at another hearing. See 38 C.F.R. § 20.707 (2013). The letter informed the appellant that if no response was received within 30 days the Board would assume she did not want another hearing. The appellant did not respond to this letter. Therefore, no further action concerning a Board hearing must be taken. In February 2012, the Board remanded the appellant's claim for additional development. The directed development has been completed, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran's entire claims file, to include the portions contained in the electronic "Virtual VA" system and Veterans Benefits Management System (VBMS), has been reviewed. FINDINGS OF FACT 1. The Veteran married the appellant on September [redacted], 1979 and divorced the appellant on October [redacted], 1993. 2. The Veteran died on February [redacted], 1997; according to the Veteran's death certificate he was divorced at the time of his death and was a resident of Bull Head, Arizona. 3. The state of Arizona does not recognize common-law marriage. 4. In November 1996, the Veteran indicated to staff at the Wadsworth VA medical center that he lived alone in a trailer park and that he was "estranged from his ex-wife." 5. The Veteran and the appellant made trips of varying duration between Texas and Arizona from October 1993 through July 1996. 6. Following the divorce in October 1993, the Veteran and the appellant did not agree to become married, and did not cohabitate as husband and wife. 7. Following the divorce in October 1993, the Veteran did not attempt to establish a marriage with the appellant a year or more prior to his death, and there were no further children born between the Veteran and the appellant. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran's surviving spouse for VA benefits purposes have not been met. 38 U.S.C.A. §§ 103, 1102, 1304, 1310, 1311, 1541 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1(j), 3.50, 3.53, 3.54, 3.205, 2.206 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The appellant filed an application for DIC, death pension, and accrued benefits in November 2006. A June 2007 letter notified the appellant that she could not be paid DIC benefits on the basis of being a surviving spouse as the record reflected she had been divorced from the Veteran. The appellant responded by submitting a notice of disagreement. By a March 2012 letter, the RO notified the appellant of the criteria for establishing entitlement to DIC benefits as a surviving spouse, to include the types of evidence and/or information deemed necessary to establish a common-law marriage. The RO further advised the appellant of the respective duties on the part of herself and VA in developing her claim. Additionally, the RO provided the appellant a VA Form 21-4170 (Statement of Marital Relationship) and VA Form 21-4171s (Supporting Statement Regarding Marriage) to assist in the development of the claim. The RO issued a Supplemental Statement of the Case (SSOC) in July 2013 which adjudicated the Veteran's claim on a de novo basis. While the RO technically did not provide pre-adjudicatory VCAA notice as the RO's initial adverse determination, the appellant did receive content complying VCAA notice as it pertains to the applicable facts prior to the July 2013 SSOC, which cured any timing deficiency upon adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). As to any duty to assist the appellant, the appellant submitted evidence and statements relevant to this claim and has not identified any outstanding evidence. She has not indicated that she desires another hearing before the Board and she is represented by the Disabled American Veterans, who have provided argument on her behalf. The Board is satisfied that the RO took every effort to assist the appellant in submitting the necessary evidence to substantiate her appeal. Therefore, the Board finds that the appellant's claim is ripe for adjudication. The Appellant's Status as Spouse The appellant seeks Dependency and Indemnity Compensation, death pension and accrued benefits and argues that she should be recognized as the Veteran's surviving spouse for purposes of entitlement to DIC benefits. While the appellant concedes that the Veteran and the appellant divorced in October 1993, she contends that she and the Veteran formed a common-law marriage while they lived together after their divorce. Governing law provides that benefits may be paid to the surviving spouse of a veteran if certain requirements are met. 38 U.S.C.A. §§ 1304, 1310, 1311, 1318, 1541 (West 2002 & Supp. 2013). 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. 38 U.S.C.A. § 101(3) (West 2002); 38 C.F.R. § 3.50 (2013). To qualify as a surviving spouse, the person's marriage to the Veteran must meet the requirements of either 38 C.F.R. § 3.1(j) or 38 C.F.R. § 3.52. See 38 C.F.R. § 3.50(b). 38 C.F.R. §3.1(j) provides that marriage "means a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued." 38 C.F.R. § 3.1(j); see 38 U.S.C.A. § 103(c). Section 3.52 provides that 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 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 (see § 3.54(d)), and (b) the claimant entered into the marriage without knowledge of the impediment, and (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. The appellant has provided testimony that she and the Veteran were in a common-law marriage due to "holding themselves out" as a married couple after their divorce. She testified that the Veteran lived with her for a period after their divorce but then the Veteran moved to Arizona and that they would go back and forth between Arizona and Texas. She stated that "sometimes he'd call me and he'd say, 'I'm sick, I don't feel good,' and I'd go over there." While the appellant indicated that she would visit the Veteran and help take care of him when he was sick, the appellant reported that she and the Veteran had separate homes. Appellant: He lived in that mobile home. That's his living room. VLJ: Okay, now - but you stayed in Dallas for the most part. Appellant: I stayed in Dallas, yeah. VLJ: Why did you stay in Dallas when you talked about maybe getting back together? Why didn't you move to Bullhead City with him? Appellant: 'Cause uh-well, the house, you know? VLJ: You had a house? Appellant: [The Veteran] said, "I have two homes,... I had one in California [Bullhead City] and one in Dallas." The appellant provided a list of trips she made to Arizona and trips the Veteran made to see the appellant in Texas. The appellant indicated that after their divorce she travelled to stay with the Veteran for the following periods: November 25, 1993, January 15-17, 1994, February 22, 1994, November 25, 1995, June 12, 1996, and July 11, 1996. She reported that the Veteran visited Texas on November 25, 1993 and from December 1994 through January 1995. The appellant indicated that she would visit the Veteran for significant dates, such as Thanksgiving, and whenever the Veteran was having health problems. The appellant stated that "we weren't living together, but we were still together." The appellant stated that they were close and that after she had spent a month and a half in Arizona with the Veteran he suggested that they get married again. The appellant, however, didn't think it made sense to get married at that time. The appellant said "why you gotta get married again? I'm here." The appellant did not report that the she and the Veteran agreed to remarry at any point after their divorce. The appellant has provided numerous lay statements in support of her claim, including testimony from her niece, G.S., and her son, R.V. G.S. stated that she felt that her aunt was married to the Veteran due to how she would travel and take care of him and that the Veteran's "home base" was in Texas. Statements from friends and family that knew the Veteran and the appellant stated that "they went together to church on Sundays as husband and wife" and "they continued to act as a married couple." However, records from the Wadsworth VAMC in November 1996 state that the Veteran reported that he lived alone, that he was "estranged from his ex-wife", and that he had the support of his adult daughter that lived in Arizona. On November 15, 1996, the Veteran reported that he wanted to go to his home in Arizona and that he was not interested chemotherapy or nursing home care. "The patient wants to go back to his home in Bullhead City... it will be attempted to get home hospice in Bullhead City. The Board must weigh the credibility of probative value of the competent evidence, accounting for evidence which it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the Veteran. Washington v. Nicholson, 19 Vet. App. 362, 366-67 (2005); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Equal weight will not be accorded to each piece of evidence contained in the record, as not every item of evidence has the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See Caluza v. Brown, 7 Vet. App. 498 (1995). Upon review of the evidence, the preponderance of the evidence indicates that the Veteran and the appellant were not in a marriage, common-law or otherwise, for VA purposes at the time of the Veteran's death. The record establishes that while the Veteran and the appellant were married from September 1979 through October 1993, the Veteran filed for divorce from the appellant and moved out of the house he lived in with the appellant to a trailer in Arizona that he lived in by himself. While the appellant's testimony that the Veteran would stay with her for periods of up to two months is found to be credible, the Board does not find that actions of the parties ever formed a common-law marriage under Texas state law. To establish a common-law marriage in Texas, it must be shown that the parties (i) agreed to be married, (ii) lived together as husband and wife (commonly referred to by the shorthand term "cohabitation"), and (iii) represented to others that they were married (referred to as "holding out"). See Texas Family Code § 1.91. In determining whether the facts showed, or failed to show, a common-law remarriage between divorced spouses, the courts have usually applied the same tests and standards which are used in determining whether persons having no previous matrimonial history entered into a common-law marriage. 82 A.L.R.2d 688. In Texas, after divorce, parties could enter into a common-law marriage if it were found that all statutory requirements for establishing common-law marriage had been met. Daniel v. Daniel, 676 S.W.2d 666 (Tex.App. 9 Dist.,1984) The evidence does not suggest that by remaining in the Texas home prior to leaving for Arizona the Veteran became the appellant's common-law husband. The Veteran had recently filed for divorce and shortly thereafter ceased living with the appellant for the majority of the time. The appellant wrote that she was visiting the Veteran in Arizona on November 25, 1993, which indicates that he had already moved out and was living on his own, less than a month after the divorce was final. The evidence provided by the appellant indicates that she visited the Veteran for several days in January and February of 1994 and again in November. During these periods, no agreement to be married was reported and after a few days the appellant would return to her home in Dallas, which would not satisfy the requirement that they live together as husband and wife. The appellant then reports that he came and stayed with her for approximately two months in Texas from December 1994 through January 1995. The appellant also testified that there was another month and a half period that she stayed with him in Arizona but no dates were given. While the Veteran and the appellant lived together during these times, the evidence of record does not indicate that at any point the couple made an agreement to be married as is required by Texas law. The appellant testified that the Veteran on more than one occasion indicated that they should get married, but the appellant rejected this proposal because she didn't think it made sense to get married at that time. The Board notes that the evidence does not suggest that an agreement to be married was made at any time after the appellant and the Veteran's divorce including during any trip to Arizona. While Arizona does not recognize common-law marriage, the Board notes that the requirement of a formal marriage ceremony by a jurisdiction that does not recognize common-law marriage, such as Arizona, constitutes a 'legal impediment' under 38 C.F.R. § 3.52. See Lamour v. Peake, 544 F.3d 1317, 1322 (Fed.Cir.2008) (citing VA Gen. Coun. Prec. 58-91 (June 17, 1991)). '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.'' Id. at 1323 (quoting Dedicatoria v. Brown, 8 Vet.App. 441, 444 (1995)). In other words, if the appellant intended to enter into a common-law marriage with the Veteran without, at that time, knowledge of the fact that Arizona law does 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. However, the evidence suggests that the Veteran and the appellant did not believe the couple to be legally married or that they had made a recent agreement to be married. This is supported by the appellant's testimony and the Veteran's statement regarding his living conditions that were made to those at the Wadsworth VAMC. The Veteran reported that his home was in Bullhead city, which indicates that he was not "cohabitating" with the appellant, he referred to the appellant as his "ex-wife", which both indicates that he did not have a current agreement with her to be married and that he was not "holding himself out" as married. This evidence that the Veteran was telling members of the public that he was divorced is viewed by the Board as more probative of how he was representing himself to others than the opinions of those that knew him for extended periods as the appellant's husband. The Board has carefully reviewed the appellant's arguments, and the law has been considered in the most favorable light possible. However, for the reasons described above, the status which the appellant seeks as the Veteran's surviving spouse is precluded by law. While the appellant and the Veteran spent extended periods of time together after their divorce, the record does not reflect that a common-law marriage was created at any time after their divorce. The appellant provided evidence that they did not have an agreement to be married and they spent the majority of the time apart in their individual homes. The Board finds that the first and second conditions of Texas common-law marriage were not present, despite how they may have been acting in front of others. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429 (1992) citing Office of Personnel Management v. Richmond, 496 U.S. 414 (1990). In sum, the Board finds that the criteria for recognition as a surviving spouse have not been met. First, the appellant and the Veteran were legally divorced in 1993 and did not officially become re-married. Second, there is no common-law marriage of record and the appellant and the Veteran did not agree to become married or cohabitate, as is required by Texas state law. See 38 C.F.R. § 3.52; 3.1(j); Texas Family Code § 1.91. Third, an equitable finding in the appellant's favor is precluded by law. Accordingly, the appellant is not entitled recognition as a surviving spouse of the Veteran, and therefore entitlement to DIC benefits, death pension, and accrued benefits is not established, as the appellant has not met a key threshold requirement. While sympathetic to the appellant's current financial status and circumstances, the Board finds that the preponderance of the evidence is against a finding that the appellant was the Veteran's surviving spouse for VA purposes. Therefore, the question of entitlement to DIC benefits, death pension, and accrued benefits is rendered moot, and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b) (West 2002), Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to DIC benefits, death pension, and accrued benefits as the Veteran's surviving spouse is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs