Citation Nr: 0810089 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 05-13 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to recognition as the surviving spouse of the veteran for the purpose of receiving VA death benefits. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Kristi L. Gunn, Associate Counsel INTRODUCTION The veteran served on active duty from April 1943 to December 1945. The veteran died in December 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2003 decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant's claim for death pension benefits. The Board notes that in the appellant's VA Form 9, Appeal to the Board of Veterans' Appeals, received in April 2005, the appellant indicated that she wanted to have a Board hearing at the RO. The appellant was scheduled for a travel board hearing to be held at the RO on January 15, 2008. In January 2008, the RO received a letter from the appellant's representative stating that the appellant wished to cancel her January 2008 hearing. Thus, the Board finds that there is no hearing request pending at this time. See 38 C.F.R. § 20.702(e) (2007). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran died in December 2002. 3. At the time of his death, the veteran and the appellant were not legally married for 1 year or more, and no child was born to them before or during the marriage. 4. Common law marriage is recognized as valid in the state of Texas. 5. Prior to October 2002, the evidence fails to show that a common law marriage existed between the veteran and the appellant. CONCLUSION OF LAW The appellant is not entitled to recognition as the veteran's surviving spouse for purposes of VA death benefits. 38 U.S.C.A. §§ 101, 103 (West 2002); 38 C.F.R §§ 3.1(j), 3.5, 3.50, 3.52, 3.53, 3.54, 3.204, 3.205 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks VA death pension benefits. In a January 2003 personal statement, the appellant asserts that she lived continuously with the veteran as his common law wife since 1974. She explained that even though he married a woman in 1946, who was his wife, he had not lived with her since 1972. The appellant further adds that they were officially married in October 2002, and as such, she should be recognized as his surviving spouse for purposes of receiving VA death benefits. Law and Regulations Governing law provides that Dependency and Indemnity Compensation (DIC) benefits and non-service connected death pension 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). 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 U.S.C.A. § 103(c) (West 2002); 38 C.F.R. § 3.1(j) (2007). A "surviving spouse" is defined as a person of the opposite sex 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 (2007). 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 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, the claimant entered into the marriage without knowledge of the impediment, 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 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 U.S.C.A. § 103(a) (West 2002); 38 C.F.R. § 3.52 (2007). The requirement that there must 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 which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation. 38 C.F.R. § 3.53(a) (2007). In cases involving alleged common law marriages, there must be proof of a common law marriage for the purpose of receiving VA benefits. Supporting evidence of common law marriage should include affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parties held themselves out as husband and wife, and whether they were generally accepted as such in the communities in which they lived. 38 C.F.R. § 3.205(a). The state of Texas, where the veteran and the appellant resided, recognizes common law marriages. The elements of a common law, or informal, marriage are: (1) a man and woman agreed to be married; (2) after the agreement they lived together in Texas as husband and wife; and (3) they represented to others in the state that they were married. See Tex. Fam. Code Ann. § 2.401 (2007). The proponent of such a marriage may establish these elements by either direct or circumstantial evidence. See Russell v. Russell, 865 S.W.2d 929, 932 (Tex. 1993). Factual Background The evidence of record shows that on the veteran's April 1943 Report of Physical Examination and Induction, the veteran listed his wife as E.J.W. In a November 1949 Affidavit of Marital Status, the veteran indicated that he had been married two times. He noted that his first wife, E.J.W., died in October 1945, and he was currently married to E.M.M., since April 1947. To support his contentions, the death certificate of E.J.W. was submitted, which reflected her death in October 1945. Subsequently thereafter, the veteran submitted an April 1947 marriage license to reflect his marriage to E.M.M, which was reiterated in February 1951 and November 1954 Declarations as to Marital Status. In November 1981, the veteran reported that he had married D.K. in May 1981. The veteran also noted that D.K. was previously married to S.K., which resulted in a divorce in January 1973. However, the Board notes that the actual divorce between D.K. and S.K. was in December 1981 as stated in the divorce decree sent to the RO in December 1981. To support that this was a marriage, the veteran resubmitted the marriage certificate of him and D.K., and stated that they continued to be married in October 1990, as indicated in the veteran's October 1990 personal statement. In August 1992, D.K. applied for an apportionment of the veteran's VA benefits. In an October 1992 decision, the RO recommended that the additional allowance for the spouse be apportioned effective September 1992. In May 1995, the veteran informed the RO that he and D.K. were no longer separated and have been together since 1993. But, in August 1998, the veteran indicated that he was separated from D.K. on his Declaration of Status of Dependents. The Board notes that the RO continued to designate an apportioned amount of the veteran's benefits to D.K. until his death. Thereafter, prior to the veteran's death, the veteran married the appellant in October 2002, as reflected in an October 2002 marriage license. In a December 2002 personal statement, the veteran mentioned the appellant as his wife, but also stated that he was never legally married to D.K., and was actually married to L.W., who died in August 1997. To support this assertion, the veteran submitted a copy of L.W.'s obituary which listed the veteran as her husband. Upon receiving the information regarding L.W., the RO determined that L.W. was receiving social security benefits on behalf of the veteran. As previously stated, the veteran died in December 2002, and the appellant and D.K. both applied for DIC benefits. In January 2003 decisions, the RO denied DIC benefits to the appellant because she was married to the veteran for less than one year. The benefits to D.K. were denied because the evidence showed that her income exceeded the maximum annual death pension set by law, and there was no evidence to suggest that she was married to the veteran. The appellant appealed therefrom. Analysis At the outset, the Board initially notes that the marriage in October 2002 between the appellant and the veteran was invalid by reason of a legal impediment. The record does not clearly show that the veteran was legally free to marry the appellant in October 2002. The record does not show the dissolution of the marriage between E.M.M. or L.W. Additionally, there are indications that D.K. received VA benefits based on her "marital relationship" with the veteran. Thus, the Board finds that the veteran and the appellant did not have a valid married at that time. Nonetheless, VA regulations provide that an attempted marriage which is invalid by legal impediment will nevertheless be deemed valid if the criteria set forth in 38 C.F.R. § 3.52 are met. In this case, the first criterion is not met. The October 2002 marriage did not occur 1 year or more before the veteran died, and no child was born of the purported marriage, either before or during the marriage. Thus, the evidence fails to show that the veteran and appellant's marriage is valid. As such and as previously noted, to support her claim, the appellant maintains that she and the veteran had a common law marriage. The appellant has submitted several personal statements throughout the course of the appeal contending that she and the veteran were common law husband and wife for more than thirty years and eventually legally married. She admitted in a June 2003 personal statement that the veteran had another wife, but contended that they had been separated for over twenty years. Based upon the evidence of record, the Board finds that the evidence, by history and currently, contradicts her appellate assertions. In fact, prior to 1998, there is absolutely no direct or circumstantial evidence indicating that the appellant and the veteran agreed to be married; after the agreement lived together in Texas as husband and wife, or represented to others in the state that they were married. See Tex. Fam. Code Ann. § 2.401 (2007). In this regard, the evidence clearly shows that the veteran was married to E.J.W. from 1942 to 1945, he was married to E.M.M. from 1947 to at least 1967, as in a 1978 statement the veteran indicated that he was widowed and in a September 1990 Marital Status Declaration form, he indicated that E.M.M. had passed in 1967. Thereafter, as noted above, the record shows that the veteran and D.K., attempted to marry in May 1981, and that this purported marriage remained intact until at least November 1998. In this regard, the Board points out that the veteran consistently listed D.K. on his pension income verification reports; D.K. received special apportionment benefits starting in 1992; and on documentation received in 1998, the veteran indicated that his purported marriage to D.K. remained intact. At no point in time during this entire period, from 1942 through 1998, did the veteran reference the appellant. Further, the record shows that the appellant was involved in two or three separate marriages from 1966 to 1990. Finally, in a statement written by the veteran prior to his death, but received at the RO in January 2003, the veteran acknowledged the appellant as his wife, but he also stated that he was never legally married to D.K., and he maintained that he was married to L.W. until her untimely death in 1997. Even based on this statement, the veteran does not reference any common law agreement or relationship with the appellant. Thus, the Board finds that the objective, competent and credible evidence wholly contradicts the appellant's assertions of being in a common law marriage with the veteran at any time prior to 1998. The Board also finds that the objective competent and credible evidence weighs against the appellant's assertions of being in a common law marriage with the veteran from 1998 to October 2002. Again, during this period, there is absolutely no document signed by the veteran that tends to indicate or suggest his agreement to enter into a marriage type relationship, permanent and exclusive of all others, with the appellant, or to undertake the obligations or responsibilities of marriage with the appellant. As previously noted, the record shows that D.K. received an apportioned amount of the veteran's benefits from September 1992 until his death, and L.W. received social security benefits on behalf of the veteran until her death. There is no mention of the appellant receiving any monetary benefits on behalf of the veteran. By letter dated in May 2003, the RO asked the appellant to submit information such as two statements from "persons who saw the relationship" to substantiate her "common law" marriage with the veteran. The appellant was nonresponsive in this regard, in that she only submitted letters explaining how she met the veteran and maintaining that she was his common law wife. No supporting lay statement has been received from "other persons who saw the relationship." Again, the record is wholly void of any reference to any type of relationship between the appellant and the veteran until October 2002, two months prior to the veteran's death. The Board acknowledges the arguments advanced by the appellant and is sympathetic to her situation. However, the appellant's lay statements supporting the alleged common law marriage are overwrought with inconsistencies and are not credible. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (Holding that interest in the outcome of a proceeding may affect the credibility of testimony.) Thus, after weighing all of the evidence, the Board concludes that the evidence is insufficient to establish that a valid common law marriage existed and that the preponderance of the evidence of record is against the appellant's claim that she is entitled to recognition as surviving spouse of the veteran based on a valid common law marriage, or any other type of marriage for the purpose of VA death benefits. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App at 55. Accordingly, the appellant may not be recognized as surviving spouse of the veteran and her claim must be denied. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must (1) inform the claimant of any information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in their possession that pertains to the claim. The VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). VA will refrain from providing assistance in obtaining evidence where the claimant is ineligible for the benefits sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility. 38 C.F.R. § 3.159(d). When there is extensive factual development in a case, and there is no reasonable possibility that any further assistance would aid the appellant in substantiating his claim, VCAA does not apply. 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Moreover, this decision results in a denial of recognition as the veteran's surviving spouse for purposes of VA death benefits and any failure to provide notice as to the effective date and rating is harmless error. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This case turns on whether the appellant is the surviving spouse of the veteran for purposes of VA death benefits. Because the appellant is not the surviving spouse, she is not entitled to VA death benefits, and is not entitled to VCAA- related assistance and notification. Absent any evidence from the appellant indicating otherwise, there is no need to further attempt to confirm the evidence already obtained by VA. As the law is dispositive in this case, the VCAA is not applicable. Assuming without deciding that the VCAA applies, the Board finds that each of the four content requirements of a VCAA notice has been fully satisfied. The appellant was provided adequate notice as to the evidence needed to substantiate her claim. The Board concludes that the discussion in the May 2003 letter informed the appellant of the information and evidence needed to substantiate the claim and complied with the VA's notification requirements. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue on appeal has been obtained. There is no indication from the appellant of any outstanding relevant records that have not been associated with the claims folder. The Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the appellant's claim. The Board finds that the evidence of record provides sufficient information to adequately evaluate the appellant's claim for entitlement to VA death benefits. No further assistance to the appellant with the development of evidence is required. ORDER Entitlement to recognition as the surviving spouse of the veteran for the purpose of receiving VA death benefits is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs