Citation Nr: 1007015 Decision Date: 02/25/10 Archive Date: 03/05/10 DOCKET NO. 08-19 635 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for purposes of VA death benefits. ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to May 1953. He died in September 2007. The appellant seeks recognition as the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an administrative decision issued by the RO in January 2008 that, in pertinent part, denied surviving spouse status on the basis that there was not a valid marriage under the laws of the appropriate jurisdiction at the time of the Veteran's death. The appellant timely appealed. This appeal is remanded to the RO via the Appeals Management Center in Washington, DC. VA will notify you if further action is required on your part. REMAND In this case, the appellant contends that she is the surviving spouse of the Veteran. She submitted a marriage license showing authority for her marriage to the Veteran in November 1958 in Illinois, and two statements from others in support of her claim. In determining whether a marriage is valid, the law of the place where the parties resided will be applied. 38 C.F.R. § 3.1(j). In this case, the appellant and the Veteran resided in the state of Tennessee. The state of Tennessee does not recognize common-law marriage and requires all parties proposing to marry to first procure a license and make their contract in the presence of certain officers. TENN. CODE ANN. §§ 36-3-103, 36-3-301 (West 2009); see Smith v. North Memphis Savings Bank, 89 S.W. 392 (Tenn. 1905). Regardless of the fact that the appellant cannot establish a valid common law marriage, VA may still deem the marriage as valid for VA purposes. The General Counsel held that lack of residence in a jurisdiction recognizing a common law marriage is not necessarily a bar to establishment of a common law marriage for the surviving spouse. VAOPGCPREC 58-91 (June 17, 1991), published at 56 Fed. Reg. 50,151 (1991). This is because under 38 C.F.R. § 3.52, the common law marriage could be "deemed valid" on the theory that the surviving spouse could have entered into the purported common law marriage without knowledge of the fact that there was an impediment to the marriage. Colon v. Brown, 9 Vet. App. 104 (1996). For VA purposes, an otherwise invalid marriage may be "deemed valid" if certain conditions are met. 38 C.F.R. § 3.52. These conditions are: (a) the marriage occurred 1 year or more before the Veteran died (or at any time if a child was born to them before or during the marriage); (b) the claimant must have entered into the marriage with no knowledge of the legal impediment, (c) the claimant must have cohabited with the Veteran continuously from the date of marriage to the date of his death, and (d) no claim has been filed by a legal surviving spouse who has been found entitled to benefits. The appellant has not submitted sufficient evidence of her claimed common law marriage to the Veteran. In addition, the RO has not discussed whether the appellant and the Veteran had a marriage that may be "deemed valid" pursuant to 38 C.F.R. § 3.52 and VAOPGCPREC 58-91 (June 17, 1991). Accordingly, the case is REMANDED for the following action: 1. The appellant should be contacted and asked to submit supporting evidence of her common law marriage to the Veteran. Supporting evidence of common law marriage should include affidavits or certified statements from the appellant 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. 2. Thereafter, the RO should re- adjudicate the appellant's claim of entitlement to recognition as the Veteran's surviving spouse for purposes of VA death benefits. The RO should discuss whether the appellant and the Veteran had a marriage that may be "deemed valid" pursuant to 38 C.F.R. § 3.52 and VAOPGCPREC 58-91 (June 17, 1991). If the decision remains in any way adverse to the appellant, she should be provided with an SSOC. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue remaining on appeal as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter 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 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 Supp. 2009). ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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). Department of Veterans Affairs