Citation Nr: 0813313 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 06-23 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether the appellant may be recognized as the surviving spouse of the veteran for Department of Veterans Affairs (VA) purposes. REPRESENTATION Appellant represented by: John Paul Berlon, Attorney WITNESSES AT HEARING ON APPEAL Appellant and her two sons ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty from July 1967 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In March 2008, the appellant testified at a Travel Board hearing before the undersigned. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The term "surviving spouse" means a person of the opposite sex (1) whose marriage to the veteran was valid under the law of the place of residence at the time of the marriage or when the right to benefits accrued; (2) who was the spouse of a veteran at the time of the veteran's death; (3) who lived with the veteran continuously from the date of marriage to the date of the veteran's death; (4) and who, except as provided in 38 C.F.R. § 3.55, has not remarried or has not since the death of the veteran (and after September 19, 1962) lived with another person of the opposite sex and held herself out openly to the public to be the spouse of such other person. See 38 U.S.C.A. §§ 101(3); 3.50(b). However, there are several exceptions to this rule (regarding remarriage) enumerated in 38 C.F.R. § 3.55. For VA death benefits entitlement purposes, the veteran must have been married to the appellant for over one year or for any period of time if a child was born of the marriage. 38 C.F.R. § 3.54. 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) see also Alpough v. Nicholson, 490 F.3d 1352 (Fed. Cir. 2007). Where an attempted marriage is invalid by reason of legal impediment, VA regulations allow for certain attempted marriages to be nevertheless "deemed valid" if specific legal requirements are met. Basically, such an attempted marriage will be "deemed valid" if: (a) the attempted marriage occurred one year or more before the veteran died; 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 the attempted marriage until his death; and (d) no other claimant has been found to be entitled to gratuitous VA death benefits. 38 U.S.C.A. § 103; 38 C.F.R. § 3.52. If the provisions of 38 C.F.R. § 3.205(a) are satisfied as well as those of 38 C.F.R. § 3.52, the claimant's signed statement that she had no knowledge of an impediment to a marriage to the veteran will be accepted as proof of the fact, in the absence of information to the contrary. 38 U.S.C.A. § 501; 38 C.F.R. § 3.205(c). The United States Court of Appeals for Veterans Claims (Court) has issued pertinent directives in Colon v. Brown, 9 Vet. App 104 (1996). Specifically, in cases such as the appellant's, the appellant must be given an opportunity to submit a signed statement pursuant to 38 C.F.R. § 3.205(c), indicating that she had no knowledge of a legal impediment to the marriage. In general, the Court indicated that if the appellant was unaware of the impediment, then an otherwise invalid marriage could be deemed valid. In this case, the appellant and the veteran married in October 1967. They divorced in June 1988. The veteran married C.B. in November 1989 and they divorced in March 1992. The appellant apparently has remarried and divorced since the veteran's death in October 1995. The veteran was seriously ill prior to his death. In correspondence of record and at her personal hearing, the appellant and her sons indicated that the only reason that the appellant and the veteran divorced was due to his abuse and irresponsible financial choices. Nevertheless, in the years prior to his death, the appellant cared for the veteran. The allegation that they had a common law marriage was made by the appellant's representative. In light of the allegation that there was a common law marriage prior to the veteran's death, further development is necessary. 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 Board finds that the appellant should be provided the opportunity to submit evidence in support of her claim consistent with 38 C.F.R. § 3.205(a) in order to establish when she and the veteran began living together as common law man and wife prior to his death. If it is established that the veteran and the appellant were common law man and wife when he died, it should be determined if the appellant remarriage to S.L.F., falls within the exceptions enumerated in 38 C.F.R. § 3.55. Finally, the Board observes that the appellant has not completed a VA Form 23-22 for her representative and this should be undertaken. Accordingly, the case is REMANDED for the following action: 1. The appellant should complete a VA Form 23-22. 2. Contact the appellant and afford her the opportunity to submit evidence in support of her claim consistent with 38 C.F.R. § 3.205, of which she is notified herein. She should also submit a copy of her marriage and divorce certificate from S.L.F. 3. The AMC should then readjudicate the claim on appeal in light of all of the evidence of record and taking into consideration common law marriage and 38 C.F.R. § 3.55. If the issue remains denied, the appellant should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2007). _________________________________________________ Robert E. Sullivan Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2007), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).