Citation Nr: 0701641 Decision Date: 01/19/07 Archive Date: 01/25/07 DOCKET NO. 03-19 637 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to recognition of the appellant as the surviving spouse of the veteran for purposes of Department of Veterans Affairs (VA) death benefits. REPRESENTATION Appellant represented by: Larry N. Colcord WITNESSES AT HEARING ON APPEAL Appellant, E.C.H., K.C., and L.C., II. ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The veteran served on active duty from June 1969 to March 1970. He died in February 2002. By letter dated in June 2002, the Department of Veterans Affairs Regional Office (RO) in Detroit, Michigan informed the appellant that her claim for death benefits was denied. This case was previously before the Board in August 2005. In June 2005 the appellant and witnesses testified at a hearing at the RO before the undersigned Veterans Law Judge; a transcript of that hearing is of record. FINDINGS OF FACT 1. The veteran and appellant were married in June 1973 in the state of Michigan. 2. The veteran and appellant were divorced as of June 1986 in the state of Michigan. 3. The veteran's death certificate records that he was divorced at the time of his death; this information was provided by his son. CONCLUSION OF LAW The requirements for recognition of the appellant as the veteran's surviving spouse for VA death benefit purposes have not been met. 38 U.S.C.A. §§ 101(3), 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.1(j), 3.50, 3.52 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Via an October 2005 letter, the appellant was informed of the evidence and information necessary to substantiate her claim, the information required of her to enable VA to obtain evidence in support of her claim, the assistance that VA would provide to obtain evidence and information in support of her claim, and the evidence that she should submit if she did not desire VA to obtain such evidence on her behalf. The VCAA letter informed the appellant that she should submit any evidence pertinent to her claim. While complete VCAA notice was not provided to the appellant prior to the initial adjudication, the claim was readjudicated after she received all critical notice, and she has had an opportunity to respond (see September 2006 supplemental statement of the case). The appellant has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notices. The procedure outlined is not at odds with the principles espoused in Pelegrini. The Board observes that as the claim is being denied in this case, the matters of notice regarding the assignment of a disability rating and effective date for such award is not at issue. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The appellant has not identified any pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claim. Factual Background The veteran died in February 2002 of service-connected disabilities. The appellant claims entitlement to DIC benefits as his surviving spouse. The veteran's death certificate records that he was divorced at the time of his death; this information was provided by his son. Also, Box 13 of the death certificate (Surviving Spouse) was empty. The record shows that the appellant and the veteran were married in Michigan in June 1973 and were divorced in Michigan in June 1986. The appellant has not asserted that the June 1986 judgment of divorce between herself and the veteran is invalid or that she was unaware of its existence. Further, the Board observes that common law marriages are not recognized in Michigan (MICH. COMP. LAWS ANN. § 551.2.), and the appellant has not asserted that she and the veteran were in a "Michigan recognized" common law marriage at the time of his death. Instead, the appellant asserts that "because of the fact we were living together when he died and he always considered me as his wife" she is entitled to DIC benefits as the veteran's surviving spouse under VA regulations. To be considered a "surviving spouse" of a veteran, the applicant 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 or, or procured by the veteran without fault of the spouse. 38 C.F.R. § 3.50(b). A claimant qualifies as a spouse of the veteran if she was validly married to him. 38 C.F.R. § 3.50. In determining whether the marriage is valid, 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, will be applied. 38 C.F.R. § 3.1(j). In this case, as she was not married to the veteran at the time of his death, the appellant can not be considered as a surviving spouse as defined by 38 C.F.R. § 3.50. The Board will consider, however, the possibility that the appellant's relationship with the veteran after the 1986 divorce may be a "deemed valid marriage" under other provisions of the law. In this regard, under 38 U.S.C.A. § 103(a) and 38 C.F.R. § 3.52, where an attempted marriage of a claimant to the veteran was invalid by reason of a legal impediment (VA has determined, via VAOPGCPREC 58-91, that the requirement of a marriage ceremony by a jurisdiction that does not recognize common-law marriage constitutes a "legal impediment" to such a marriage for purposes of 38 U.S.C.A. § 103(a)), the marriage will nevertheless be deemed valid if: (1) 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); (2) the claimant entered into the marriage without knowledge of the impediment; (3) the claimant cohabited with the veteran continuously from the date of marriage to the date of his or her death; and (4) 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. The Board notes that in Colon v. Brown, 9 Vet. App. 104 (1996), the United States Court of Appeals for Veterans Claims (Court) determined that in cases where there is an impediment to entering into a common-law marriage, if the appellant was unaware of the impediment, then an otherwise invalid common-law marriage could be deemed valid. Having previously been legally married and divorced in Michigan, and having a long-term residence in that state, the Board finds that it was more than likely that the appellant knew that in order for her to be remarried to the veteran she needed to formally remarry him under Michigan state law. Leading further credence to this finding is the fact that a court order of record reflects that the appellant was married to "L" from 1986 to 1990, further signifying that she was aware of the marriage laws of Michigan. Most important, however, is that while a claimant's signed statement that she had no knowledge of an impediment to the marriage to the veteran will be accepted, 38 C.F.R. § 3.205(c), the Board notes that the appellant has not submitted such a statement and has never asserted that she was unaware of the "impediment" to remarrying the veteran in this case. Nevertheless, even assuming that the appellant was unaware that common law marriages were invalid in Michigan, and further assuming that she and the veteran attempted to "enter into a common law marriage," the claim must still be denied. At the August 2005 Board hearing, the veteran's son testified (Board hearing transcript, page 7), as follows: My father would come in for a weekend and even during that weekend he was drinking. I would pay for the groceries. This is constant throughout my mother's entire marriage, during us children, after us children, and even to the day of his death where he actually died in my mother's living room where he, just that year alone, he spent at least eight months out of that year between my mother's house and my house, mostly at my mother's house because he would take his check that was, again the same habit. First, while it appears that the veteran did move in with the appellant prior to his death, the facts reveal that the "moving back in" was for only a period of months, and the appellant has not asserted otherwise. Further, even during the period of months preceding his death the veteran sometimes lived with his son, further highlighting the fact that continuous cohabitation (as required by 38 C.F.R. § 3.52) was not shown. While the appellant states that she and the veteran were essentially "married" throughout their lives, she has never asserted that they cohabited together subsequent to the 1986 divorce, at least not until the last few months of the veteran's life. A review of the claims file reveals that the veteran and the appellant, until the last months preceding his death, clearly lived in separate addresses miles apart. Other documents of record cast doubts on the appellant's assertion that she and the veteran were essentially man and wife, even after their 1986 divorce. First, a court order of record reflects that the appellant was married to "L" from 1986 to 1990. While the appellant and her children have maintained that the marriage to "L" was either void or not significant, it appears that two children we born to the appellant and "L" during the 1986 to 1990 marriage. Also of record is a July 2001 court document, dated just 7 or so months prior to the veteran's death. The court document reflects that the appellant was the Plaintiff and the veteran was the Respondent in an action concerning overdue child support. The Board observes that litigation between parties at the time of a "purported marriage" does not support the appellant's case that the veteran and the appellant were holding themselves out as husband and wife during this time period. Further, as noted earlier, the veteran's death certificate records that he was divorced at the time of his death. Box 13 of the death certificate (Surviving Spouse) was empty. In short, the credible evidence is against finding that the appellant entered into a "marriage" with the veteran without knowledge of the impediment, or that she cohabited with the veteran continuously from the date of "marriage" to the date of his death; it also appears that such cohabitation was also for a period of less than one year. As such, the appellant's relationship with the veteran prior to his death may not be a "deemed valid marriage" under 38 C.F.R. § 3.52 or any other law or regulation. Accordingly, the requirements for recognition of the appellant as the veteran's surviving spouse have not been met and the claim is denied. ORDER The claim for recognition of the appellant as the veteran's surviving spouse for purposes of receiving VA death benefits is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs