BVA9509716 DOCKET NO. 93-14 985 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to recognition as surviving spouse of the veteran for purposes of Department of Veterans Affairs death benefits based on a common-law marriage. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD Christine E. Puffer, Associate Counsel INTRODUCTION The veteran had active service from June 1967 to July 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1991 Administrative Decision of the Department of Veterans Affairs (VA) Houston, Texas, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that she and the veteran maintained a common-law marriage subsequent to their second divorce in 1975 until the date of his death. She maintains that the veteran lived continuously with her and their children, except for separations occasioned by the veteran's misconduct or need for medical treatment. She reports that she changed her name to her maiden name in order to gain police protection from her husband when necessary, and lied about their relationship to police to protect herself and their children from the veteran's abusive actions. The appellant alleges that she represented herself as single or divorced in certain areas of her life because of the veteran's negative reputation, but that to her friends, neighbors, and others, she and the veteran always presented themselves as married. Both of the appellant's children support these contentions. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the appellant's claim for entitlement to recognition as the surviving spouse of the veteran for VA purposes. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the instant claim has been obtained by the RO. 2. The appellant and the veteran had an agreement to take each other as husband and wife, held each other out to the public as spouses, and continually cohabited as husband and wife until the veteran's death in 1990. 3. The relationship between the appellant and the veteran constituted a common-law marriage. CONCLUSION OF LAW The appellant is entitled to recognition as surviving spouse of the veteran for purposes of entitlement to VA benefits. 38 U.S.C.A. §§ 101(3), 103, 5107 (West 1991); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.54 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background The evidence of record establishes that the veteran and the appellant were ceremonially married in Texas in June 1964, divorced in December 1966, formally remarried in July 1969, and divorced in April 1975. A VA hospital discharge summary for the veteran from October 1980 through January 1981 shows that he reported having a long history of marital difficulties, and that he lived with the appellant on an intermittent basis. A discharge summary of an April to May 1983 VA hospitalization of the veteran noted that he had been living with the appellant until recently since their divorce in 1975. Similarly, a discharge summary of a September to November 1985 hospitalization documents the veteran's report that he and his "present wife" had problems, and were then "separated." A July 1986 discharge summary indicated that the veteran was "married, divorced, lives with his grandmother." A similar document reflecting hospitalization of the veteran from November 1987 to January 1988 reported that he had "family problems," and experienced murderous impulses towards his ex-wife. A discharge summary of a June to July 1988 hospitalization noted the veteran was experiencing marital problems with his separated wife. An August 1989 discharge summary noted that he would stay with his grandmother for several months, but lived in Houston. A May 1989 police report documented that the veteran had driven his truck into the appellant's house after she refused to come out and talk to him. The veteran was observed using intravenous drugs and ingesting pills at the crime scene. He was very violent, and expressed homicidal and suicidal intentions. He threatened to kill the appellant, saying he was going to shoot her, and informed police officers and emergency medical technicians of this intent. A July 1989 VA hospital discharge summary noted that the veteran had been hospitalized on numerous occasions for a mental disorder, had numerous prison sentences, and admitted to criminal activities in his past. He also recounted a history of drug abuse, which was ongoing. A March 1990 VA hospital discharge summary includes the veteran's report that he was to appear in court that month to face criminal charges. The veteran's terminal hospital records document that at the time of his admission in November 1990, charges were pending for his arrest. He died on December [redacted] 1990, secondary to respiratory failure secondary to right lower lobe pneumonia. In a Statement of Marital Relationship dated in January 1991, the appellant reported that she and the veteran had been separated from May 1986 through December 1990 due to, initially, the veteran's need for medical care elsewhere, and later because of his criminal conduct. In an appended statement, she indicated that the veteran had occasionally been very violent, and that she had obtained the second divorce in order to receive police protection and to gain control over family obligations. She indicated that they had thereafter lived together for 12 years as husband and wife, and that the veteran had gone from her to his grandmother to VA hospitals, until he was transferred to a Houston VA facility for treatment in 1986. The appellant filed an Application for Dependency and Indemnity Compensation (DIC) or Death Pension by a Surviving Spouse or Child in February 1991. She indicated that she and the veteran had a common-law marriage prior to his death, had resided continuously together, and that she had changed her last name to her maiden name in order to protect herself and her children from the veteran. In an associated application, her daughter, [redacted], reported that her parents (the veteran and the appellant) had a common-law relationship. In an August 1991 Administrative Decision, the RO concluded that the appellant was not entitled to recognition as the veteran's surviving spouse for VA benefit purposes. The decision noted that she and the veteran had filed income tax returns in 1980 and 1985 as individuals, sales contracts showed her as the sole obligee, and letters written by the veteran as late as 1986 failed to indicate that he and the appellant were representing themselves as married to the community. Similarly, it was found that none of the documentation she submitted showed an intent on her part to be the veteran's wife. By rating decision of January 1992, the RO granted service connection for the cause of the veteran's death. At her September 1993 hearing before the Board in Washington, D.C., the appellant submitted copies of various lay statements that had been previously offered, but were not of record, as well as a copy of a photograph of the appellant with the veteran and their two children, tentatively dated in 1984. Their son, [redacted], provided a statement detailing his life with his father, the veteran. He stated that his parents divorce had been "on paper only," and that the veteran had never left their home or their lives. The veteran had lived with them intermittently, spending every holiday and special occasion with the family. At school functions, his parents had presented themselves as married, and the veteran always introduced the appellant to others as his wife. [redacted] stated that he always thought of his parents as married as had everyone who knew them. When questioned about his "wife," the veteran would respond with respect to the appellant, and the appellant did likewise when questioned about her "husband." [redacted] stated that from 1970 to the veteran's death, his parents had always referred to themselves as spouses, and that everyone knew them as such. In an October 1990 statement, [redacted] said that she had known the appellant and the veteran for over 25 years, and considered them to be married. She reported that they referred to each other as husband and wife, and had lived as husband and wife from 1964 through 1990 except for the last few years as the veteran had moved to Houston for medical treatment. A neighbor recounted in a September 1991 statement that she had lived in the neighborhood for over 15 years, and had known the veteran and the appellant as husband and wife. The veteran was reported to usually have lived with the appellant, although he would occasionally leave of his own initiative. [redacted], a close friend of the veteran, reported in October 1991 essentially the same information with respect to the appellant and the veteran's relationship. He stated that they had lived together from 1979 to 1990. [redacted], whose relationship was unspecified, reported that he always felt that the appellant and veteran were married. At the hearing before the Board, the appellant and her daughter testified that the veteran had been physically and verbally abusive, and had extensive problems with drug and alcohol abuse. The appellant reported that she obtained her first divorce from the veteran in 1966 because he was physically abusive, acted improperly with respect to their son, [redacted], and had a problem with alcohol. Both she and her son were afraid of the veteran. She and the veteran continued to see each other, however, on a weekly basis. She remarried the veteran in 1969 as he had changed after entering the military. The veteran was discharged from the service in 1973 for medical reasons, and thereafter began drinking heavily and abusing drugs, during which time he became extremely violent. Both she and her children were scared of the veteran, who physically abused her. She obtained a second divorce in 1975 as a result, and in order to obtain police protection. However, shortly thereafter they agreed to live together, except if he was using drugs or abusing alcohol, at which time he had to leave the home. The veteran lived for a time in Houston, where he was forced to go to obtain medical treatment after becoming abusive to local VA care givers. She reported that she had changed her name back to her maiden name in order to obtain police protection, as otherwise police officers would not intercede when the veteran became abusive, viewing it as a domestic problem. She testified that she had lied to the police in May 1989, telling them that she and the veteran had been separated for 14 years, in order to obtain police protection for herself and her children. The veteran's daughter testified that she had never felt that her parents were divorced. She indicated that her father had intermittent violent and abusive periods. She always thought of her parents as married, stating that her father had never really left and that they had been a family, albeit dysfunctional. Similarly, the appellant testified that she had always felt that she and the veteran were married before his death. When questioned as to why it was indicated on the veteran's death certificate that they were divorced, she noted that the woman who had provided the information had been a paramour of the veteran, as well as part of the reason for their first divorce. She testified that the veteran never had any bank account, and did his own taxes because she made mistakes and he wished to avoid trouble with the Internal Revenue Service. Because he did not desire to share in her insurance benefits, she did not list him. When questioned as to why she characterized herself as single or divorced on employment forms, the appellant explained that the veteran had a criminal history, including shoplifting, and that she did not wish to be associated with him in that respect. She cited an incident in which he had robbed her own store. Neither wore wedding bands because the veteran had pawned them. The appellant stated that the veteran's sister had always felt that she and the veteran were husband and wife. She conceded that she had last seen the veteran in 1989, at the time of the "police incident." II. Analysis A VA death pension may be paid to a surviving spouse who was married to the veteran for one year or more prior to his death, or for any period of time if a child was born of the marriage, or was born to them before the marriage, or prior to May 8, 1985, in the case, as here, of a veteran of the Vietnam era. 38 U.S.C.A. § 541(f); 38 C.F.R. § 3.54(a). In pertinent part, DIC benefits may be granted to a "surviving spouse" of a veteran who died from a service-connected disability, who was married to the veteran for one year or more or for any period of time if a child was born of the marriage. 38 U.S.C.A. §§ 1304, 1310(a); 38 C.F.R. § 3.54(c). To be recognized as a "surviving spouse," a claimant must have been the veteran's spouse at the time of his death, and have lived continuously with him from the date of their marriage to the date of his death, except where there was a separation due to the misconduct of, or procured by, the veteran without the fault of the spouse. 38 U.S.C.A. § 101(3); see 38 C.F.R. § 3.50(b). 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 will not break the continuity of the cohabitation. 38 C.F.R. § 3.53(a). The surviving spouse's statement as to the reason for any separation will be accepted in the absence of contradictory information. If the spouses lived apart for purposes of convenience, health, business, or any other reason that did not show an intent on the part of the surviving spouse to desert the veteran, the continuous cohabitation requirement will not be considered to have been broken. 38 C.F.R. § 3.53(b). Pursuant to 38 C.F.R. § 3.1(j), "Marriage means a marriage valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued." It is undisputed that both the veteran and the appellant resided in Texas at all pertinent times, and that both formal marriages took place in that state. As noted in the RO's August 1991 Administrative Decision, Texas also recognizes informal or common-law marriage. A common-law marriage may be established in Texas based upon allegation and proof that the parties entered into an agreement between themselves, either expressed or implied, to take each other for husband and wife during their lives, followed by cohabitation as husband and wife and holding each other out to the public as their respective spouses. None of the three essential elements, standing alone, is sufficient to establish a common-law marriage. See Deshazo vs. Christian, 191 S.W.2d 495 (1945). Although both formal marriages between the appellant and the veteran had been terminated by divorces, she has testified that they thereafter continued to cohabit and treat each other as husband and wife in every respect. According to the appellant and her daughter, the divorces were occasioned because the family members needed to protect themselves from the veteran's abusive behavior and his abuse of alcohol and drugs. This was also said to be true of the appellant's decision to change her surname back to her maiden name. The veteran's medical records clearly document the veteran's repeated and extensive abuse of drugs and alcohol, as well as his violent tendencies and threats against the appellant. Both of the veteran and the appellant's children have reported on their father's abusive behavior and their parent's agreement that he was to absent himself from their home when he was drinking or using illicit drugs. The veteran's medical records essentially confirm this, documenting that his reported residence varied widely, but included living with the appellant. In addition, a May 1989 police report is of record documenting the veteran's threatening and abusive behavior towards the appellant and their children. Viewed in conjunction with the veteran's medical records, these documents corroborate the appellant's reports of his irrational behavior and continuing polysubstance abuse. Lay statements confirm that the veteran's absences from their home were due to his abusive behavior, as well as the need to procure medical treatment elsewhere. The appellant's report of lying to police in May 1989 is confirmed by the appellant's reports in medical records of the veteran beating his wife as recently as 1988. The question of fault or absence of fault with respect to any period of separation between the appellant and the veteran is to be determined based on an analysis of the parties' conduct at the time of the initial separation. See Gregory v. Brown, 5 Vet.App. 108 (1993). Given that the veteran's absences from the family home were, in part, based upon an agreement between himself and the appellant with respect to when he became abusive or was using drugs or alcohol, the Board concludes that those absences were not due to any fault of the appellant. As with the times that the appellant was reportedly absent from the family due to the need to obtain medical care, the continuity of the veteran and appellant's continuous cohabitation was not broken. Although the record is replete with references by both the appellant and the veteran of their divorce, often it appears that the distinction was made on a legal basis without regard to the subsequent establishment of an informal or common-law marriage. The record also contains repeated references by the veteran to the appellant as his "wife," most recently in July 1988. The appellant's explanation of their failure to indicate that they were married on tax forms from 1980 and 1985, or on sales contracts is credible under the circumstance. The record indicates that the veteran was financially irresponsible, and he had had altercations with the police as well as a criminal history. He is documented as threatening to kill the appellant, and appears to have attempted to do so on at least one occasion. After the latter episode, the veteran required hospitalization on several occasions prior to being confined for a probation violation, during which time he entered his terminal period of hospitalization. Therefore, the veteran's final period of absence from the familial home was clearly occasioned by his own actions, and not due to any fault of the appellant. The fact that their business matters were separate does not mitigate against the appellant's contentions with respect to their personal life, especially in light of all evidence of record. The veteran's children have reported that their parents were always viewed as husband and wife by themselves and others, and that their parents consistently introduced themselves as spouses. The Board finds this testimony to be credible. The information has also been corroborated by a close friend of the veteran, a neighbor and other friends of the family. The Board attaches considerable evidentiary weight to the information provided by the appellant, the veteran's children, and the other witnesses who provided evidence on their behalf. In the Board's judgment, although the record is not free from all doubt, the evidence supports the appellant's contentions that she and the veteran had an agreement to take each other as husband and wife, lived continuously from that time until the veteran's death, and held each other out to the public as spouses after their second divorce. Accordingly, it may be concluded that they had a valid common-law marriage under Texas law, and the appellant satisfied the VA's requirement of continuous cohabitation. Essentially, it appears to the Board that the parties reconciled repeatedly, despite the veteran's conduct throughout their long and stormy relationship. The parties eventually separated before the veteran's death, but this appears to have been for medical reasons or at least for reasons not a result of the appellant's misconduct. Thus, favorable action with respect to the appellant's claim is warranted. 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.53. ORDER Entitlement to recognition of the appellant as the veteran's surviving spouse for purposes of VA death benefits based on a common-law marriage is established. The appeal is granted. CHARLES E. HOGEBOOM Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.