Citation Nr: 0845012	
Decision Date: 12/31/08    Archive Date: 01/07/09

DOCKET NO.  06-04 972	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, 
Kentucky


THE ISSUE

Entitlement to recognition as the veteran's surviving spouse 
for VA death benefits purposes. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

Thomas H. O'Shay, Counsel 


INTRODUCTION

The veteran had active military service from October 1978 to 
October 1981.  He died in March 2005.  He was married to the 
appellant at the time of his death.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of an April 2005 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Louisville, Kentucky. 

In April 2007 the appellant cancelled her request for a Board 
hearing and requested a hearing before a Decision Review 
Officer instead.  She attended the that hearing in March 
2008.


FINDINGS OF FACT

1.  The State of Kentucky does not recognize common law 
marriages; the appellant was aware of this impediment to 
marriage.

2.  The appellant and the deceased veteran were married in a 
solemnized marriage ceremony in October 2004; no child was 
born of the marriage.

3.  The veteran died in March 2005. 





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, 3.5, 3.50, 3.52, 3.54 (2008). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under 38 U.S.C.A. § 5103, VA must notify the claimant of the 
information and evidence not of record that is necessary to 
substantiate the claim, and of which information and evidence 
that VA will seek to provide and which information and 
evidence the claimant is expected to provide. 

The appellant was not provided with notice of the information 
and evidence necessary to substantiate her claim prior to the 
April 2005 rating decision from which this appeal originates.  
The record reflects, however, that in the April 2005 notice 
of the rating decision, and in the May 2005 response to her 
notice of disagreement with the decision, the RO advised her 
of the information and evidence necessary to substantiate her 
claim.  Her claim was readjudicated in a January 2006 
statement of the case.  See Mayfield v. Nicholson, 499 F.3d 
1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 
Vet. App. 370, 376-77 (2006). 

Moreover, the record shows that she has actual notice of the 
information and evidence necessary to substantiate her claim.  
She also has actual notice of the respective responsibilities 
of she and VA in obtaining evidence in support of her claim.  
In multiple statements and in testimony at the RO, she 
addressed the regulation at issue concerning the length of 
time to which she was married to the veteran.  From the 
outset, she has presented extensive argument to establish 
that she and the veteran were involved in a common law 
marriage for years prior to his death, and has provided 
supporting evidence, as well as testimony, in this regard.  
The Board points out that the issue before the Board involves 
evidence which is under the appellant's control, and for 
which VA is clearly not in the position to obtain.  
Specifically, given that the appellant's marriage certificate 
is on file, the most relevant evidence is that tending to 
show that she and the veteran believed they were in a valid 
marriage prior to October 2004.  Such evidence, including 
statements from those who knew them at the time, or bills 
they jointly paid, is within the control of the appellant to 
provide, and not reasonably within the province of VA to 
obtain.  In addition, there simply is no indication that 
there is any more evidence to obtain in this case.  See 
DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001).

In short, the appellant clearly is not only aware of what 
evidence is required in order to substantiate her claim, but 
has been proactive in securing such evidence, and there is no 
indication of any outstanding evidence left to be obtained.  
Under the circumstances the Board finds that any notice 
deficiency has been rebutted.  See Sanders v. Nicholson, 487 
F.3d 881 (Fed. Cir. 2007).

Based on the procedural history of this case, it is the 
conclusion of the Board that VA has complied with any duty to 
notify obligations set forth in 38 U.S.C.A. § 5103(a).  

With respect to VA's duty to assist the appellant, the Board 
notes that pertinent records from all relevant sources 
identified by her, and for which she authorized VA to 
request, were obtained by the RO or, as it turns out, 
provided by the appellant herself.  38 U.S.C.A. § 5103A.

In sum, the facts relevant to this appeal have been properly 
developed and there is no further action to be undertaken to 
comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, 
or 38 C.F.R. § 3.159.  Therefore, the appellant will not be 
prejudiced as a result of the Board proceeding to the merits 
of the claim.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 
(1993).

Review of the claims files show that in all of his contacts 
with VA through the years, the veteran consistently reported 
living at addresses located in Kentucky.  At no point did he 
report living at a [redacted] street address, and he only reported 
living at a [redacted] street address starting in 2004.  

In September 1994, the veteran identified his dependents to 
VA; those dependents were his spouse at the time, and their 
children.  In January 1999 he submitted a VA Form 21-686c, 
Declaration of Status of Dependents, on which he reported a 
divorce from that spouse in November 1995, and listed two 
children as his dependents.  In a May 1999 rating decision he 
was granted a total rating based on individual 
unemployability due to service-connected disabilities, and 
received additional compensation for his dependents.  At no 
time prior to November 2004 did he mention the appellant, or 
otherwise identify her as a dependent.

In November 2004, the veteran filed a second VA Form 21-686c, 
on which he listed the appellant as his spouse.  This was the 
first mention by the veteran to VA of the appellant, and on 
the form he listed their marriage as occurring in October 
2004 in Kentucky.  He thereafter died in March 2005.  At some 
point following his death, the appellant submitted a marriage 
certificate showing she and the veteran were married in a 
solemnized ceremony in October 2004.

On her April 2005 application for VA death benefits, the 
appellant indicated that she and the veteran were married in 
October 2004.  She indicated that she had divorced a former 
spouse in February 2002.

In April 2005 the appellant submitted a document labeled a 
quitclaim deed completed in October 2002 purporting to convey 
certain property from the veteran to himself and the 
appellant as husband and wife.  The document is not signed or 
notarized.

In a March 2006 statement, Mr. E.L. explained that he had 
known the appellant for more than 15 years, and that although 
she had been married to the veteran for only a short time, 
they had been together for more than 3 years.  He suggested 
there was a reason why they cohabitated for so long without 
marrying, but he refused to elaborate.

In an April 2006 statement, Ms. N.A. indicates that she knew 
the veteran for 7 years and the appellant for 4 years.  She 
explained that she knew they were husband and wife because 
the veteran told her this information.  She indicated that 
she knew of them as husband and wife as of November 2004, but 
explained that they had lived together in a common law 
relationship prior to that time.

In an April 2006 statement, Ms. T.T. indicates that she has 
known the appellant for 10 years, and that she knew the 
appellant had been in a committed relationship with the 
veteran even before their formal marriage.  She explained 
that she knew they were husband and wife because the veteran 
and the appellant had told her this information.  She noted 
that they had lived together since the Summer of 2003.

In an April 2006 statement, the appellant indicated that he 
had divorced her prior husband in February 1998, and began 
living with the veteran as husband and wife in October 2000.  
She indicated that she and the veteran had not had children 
together.  The appellant indicated that she and the veteran 
began living together at a [redacted] street address from October 
2000 to August 2002, before moving to a [redacted] street address 
beginning in August 2002.

In other statements on file the veteran contends that she and 
the veteran were at least in a common law marriage for the 
three years prior to his death.  She indicates that she cared 
for him during his illnesses and performed the routine chores 
and caregiving expected of a spouse.

At a March 2008 hearing before a decision review officer, the 
appellant testified that she and the veteran believed they 
were in a common law marriage for years before his death 
because they were cohabitating, sharing bills and 
responsibilities, and holding themselves out as husband and 
wife and as a family.  Her sister testified that the 
appellant and the veteran held their relationship out as a 
common law marriage.  The appellant testified that 
"religious overtones" following the death of the veteran's 
father led them to get a marriage certificate, although they 
still believed they were already married.  The sister 
clarified that it was she who convinced them to make their 
marriage official.  The representative argued that 38 C.F.R. 
§ 3.54 should not apply to the appellant because that 
regulation was archaic and designed solely to exclude "women 
of unsavory character."  

Governing law provides that Dependency and Indemnity 
Compensation (DIC) benefits may be paid to the surviving 
spouse of the veteran if certain requirements are met.  38 
U.S.C.A. §§ 1304, 1310, 1311, 1541 (West 2002); 38 C.F.R. § 
3.5.

A "surviving spouse" is defined as a person of the opposite 
sex who was the spouse of the 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.  See 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50.

A surviving spouse may qualify for pension, compensation or 
dependency and indemnity compensation if the marriage to the 
veteran occurred before or during his or her service or, if 
married to him or her after his or her separation from 
service, for one year or more prior to the veteran's death, 
or for any period of time if a child was born of the 
marriage, or was born to them before the marriage.  38 C.F.R. 
§ 3.54(a)(1),(2).

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(a); 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 C.F.R. § 3.205(c).  

In VAOPGCPREC 58-91, VA's Office of General Counsel held that 
the requirement for 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).  See also Colon v. Brown, 9 Vet. App. 104 
(1996). 

In the absence of conflicting information, proof of marriage 
by a copy of the public record of marriage containing 
sufficient data to identify the parties, date and place of 
marriage, and the number of prior marriages if shown on the 
official record along with a certified statement by the 
appellant concerning the date, place, and circumstances of 
the dissolution of any prior marriage may be accepted as 
establishing a valid marriage.  Where there is conflicting 
information, proof of termination of a prior marriage will be 
shown by proof of death or a certified copy or abstract of a 
final divorce decree or annulment.  38 C.F.R. § 3.205(a), 
(b).
 
The record shows, and the appellant does not dispute, that 
she and the veteran were formally married (i.e. in a 
solemnized ceremony) in October 2004 (less than one year 
prior to his death), and that no child was born at any point 
to the parties.  She contends that she and the veteran 
nevertheless had a common law relationship for the three 
years prior to his death.

The Board first points out that she and veteran could not 
have established a common law marriage in the Commonwealth of 
Kentucky, because that state prohibits that type of a 
marriage.  See KY.REV.STAT.ANN § 402.020 (marriage prohibited 
and void when not solemnized or contracted in the presence of 
an authorized person or society); Gilbert v. Gilbert, 275 Ky. 
559, 122 S.W. 2d. 137 (1938).  The appellant contends that 
she and the veteran were unaware of that legal impediment 
when they entered into what they believed was a common law 
marriage.

Moreover, the Board does not find credible the appellant's 
statements and testimony (nor those of her supporters) that 
she and the veteran lived together prior to their October 
2004 marriage in a relationship they believed was a common 
law marriage.  In this regard the Board points out that the 
veteran himself never mentioned the appellant to VA until 
November 2004.  This is significant, given that he had been 
in receipt of a total disability rating since 1999, and was 
well aware that he could receive additional benefits from 
having another dependent added to his award.  Moreover, the 
information provided by the appellant herself as to their 
cohabitation is not only internally inconsistent across 
several of her statements, but with the records on file.  She 
initially claimed that they began living together around 2002 
(i.e. three years prior to his death).  She later contended 
that they began living together in October 2000, a 
substantial difference in time.  Moreover, she contends that 
they lived together at a [redacted] street address from October 
2000 to August 2002, and at a [redacted] street address from August 
2002 until his death.  The record shows, however, that the 
veteran reported several addresses between 1999 and 2004, 
none of which involved the [redacted] street address.  He reported 
living at the [redacted] street address only starting in 2004.  
Although the veteran may have visited the appellant at the 
[redacted] street address, the evidence suggests he never lived 
with her at that location.  

The Board has also considered the quitclaim deed submitted by 
the appellant, but points out that it was not actually signed 
by any party, that it is not notarized, and that it otherwise 
contains no indication that it was ever recorded or is 
authentic.  The Board accords the "quitclaim deed" no 
probative weight as to the question of whether the veteran 
and the appellant cohabitated or otherwise believed 
themselves to be man and wife in 2002.

The Board has also considered the statements of Ms. N.A., Ms. 
T.T., and Mr. E.L., as well as the testimony of the 
appellant's sister, to the extent they allege that the 
veteran and the appellant lived together prior to the October 
2004 marriage.  Notably, however, despite their purported 
familiarity with the veteran and the appellant, Ms. N.A. and 
Mr. E.L. were vague about when the appellant and the veteran 
began to cohabitate (using the terms "years") and Ms. T.T. 
reported a date inconsistent with both dates reported by the 
appellant herself.  Moreover, each of the acquaintances 
obtained their knowledge of the "marriage" of the appellant 
and the veteran either after the formal marriage, or at an 
unspecified period of time.  The sister was also vague 
concerning the beginning date of cohabitation.  Given the 
inconsistency between the addresses reported by the veteran 
during his lifetime and the statements of the appellant and 
her supporters, as well as the inconsistencies in the 
statements themselves concerning dates of cohabitation, the 
Board finds that the statements and testimony of the 
appellant and her supporters lack credibility, and that the 
evidence as a whole shows that the appellant and the veteran 
were not involved in a relationship they believed was a 
common law marriage prior to October 2004.

Even if the veteran and the appellant were living together 
prior to October 2004, the Board finds the evidence to 
demonstrate that they would have had knowledge of the legal 
impediment to marriage imposed by the Commonwealth's refusal 
to recognize common law marriages.  Specifically, the fact 
that they elected to enter into a solemnized ceremony in the 
first place strongly suggests that they were aware they were 
not in a marriage prior to October 2004.  The Board finds the 
testimony of the appellant and her sister that the 
solemnization was done with religious overtones in mind for 
the sensibilities of others to be unpersuasive.  The 
appellant acknowledged under oath that she and the veteran 
believed they were already married prior to October 2004, 
which would tend to make the solemnization ceremony 
superfluous.  Moreover, Ms. T.T. indicated that they were 
married without a wedding celebration (which is supported by 
the marriage certificate indicating that a Justice of the 
Peace performed the ceremony with only 2 witnesses), and that 
the ceremony was to be planned later.  The Board finds it 
difficult to accept that the veteran and the appellant, who 
believed themselves already married, would rush ahead to get 
a marriage certificate without the presence of witnesses 
other than the sister and another relative, when the entire 
purpose of the marriage certificate purportedly was to 
satisfy the sensitivities of a number of others.  The Board 
finds the actions of the appellant and the veteran instead to 
be more consistent with those of a couple who fully realized 
that they were not married, and who wished to promptly 
rectify that situation.

In sum, the veteran and the appellant were married for less 
than one year before he died, they did not have a child with 
each other, and the evidence as a whole shows that they did 
not attempt to live in a common law marriage prior to their 
solemnized marriage ceremony in October 2004.  The probative 
evidence also shows that they were well aware of the legal 
impediment to an attempted common law marriage in the 
Commonwealth of Kentucky.

Accordingly, the Board finds that although the appellant and 
the veteran were married at the time of his death, she may 
not be recognized as his surviving spouse for VA purposes 
pursuant to 38 C.F.R. § 3.54.  The Board has considered the 
representative's opinions concerning the policy rationale 
behind the regulation, but points out that the Board is bound 
by the regulation.  The regulation does not allow the Board 
to treat appellants who fall squarely within the language of 
the regulation differently, based on an assessment of either 
their character, or their motivation for marrying a veteran.






ORDER

Entitlement to recognition as the veteran's surviving spouse 
for VA death benefits purposes is denied. 



____________________________________________
JAMES L. MARCH 
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs