Citation Nr: 1007188 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-10 680 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Whether the Appellant had a valid marriage to the Veteran for more than one year before his death to establish the Appellant's entitlement to dependency and indemnity compensation benefits. ATTORNEY FOR THE BOARD Nathaniel J. Doan, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1958 to March 1960. He died in February 2007. The Appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of an administrative decision in June 2007 of a Department of Veterans Affairs (VA) Regional Office (RO). The claim is REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND Dependency and indemnity compensation benefits may be paid to the surviving spouse of a veteran who died on or after January 1, 1957, who was married to the veteran: before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated; or for 1 year or more; 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 copy of the marriage certificate shows that the Appellant and Veteran were married in a civil ceremony in September 2006 in California, which is accepted as proof of marriage under 38 C.F.R. § 3.205. The Veteran died in February 2007 in California, less than one later and more than 15 years after the Veteran's separation from service in March 1960, and the Appellant and the Veteran did not have a child together. In rating decision in May 2007, the RO determined that dependency and indemnity compensation benefits were payable to a proper beneficiary. 38 U.S.C.A. § 1310 and 38 C.F.R. § 3.5. In June 2007, the RO determined that as the Appellant and Veteran were married less than one year before the Veteran died, the Appellant did not meet the requirements for recognition as the Veteran's surviving spouse under 38 C.F.R. § 3.54. The Appellant argues that she and the Veteran held themselves out as married more than a year before the Veteran died as evidenced by documents, including an insurance form, dated in 1992, showing the Appellant and Veteran as Mrs. and Mr., a CHAMPVA form listing the Appellant as the Veteran's beneficiary, which was issued in 2001, an undated, mail addressed to the Appellant and the Veteran, loan papers, dated in 2003, listing the Appellant as co-borrower under her pre married name, and a bank statement in the Appellant's and Veteran's names dated in November 2006. The Appellant is essentially describing a de facto marriage, which is a marriage relationship created by agreement and cohabitation rather than by ceremony, which is also referred to as a common law marriage. A marriage is 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, in this case, California. 38 C.F.R. §§ 3.50 and 3.1(j). A de facto marriage or common law marriage is not recognized under California law. See CAL. FAM. CODE § 300 (defining "marriage" as a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization.). The requirement of a marriage ceremony under California law, which does not recognize common law marriage, constitutes a "legal impediment" to such a marriage. Nevertheless when a claimant enters into a marriage with a veteran without knowledge of the existence of a legal impediment to that marriage, and thereafter cohabited with the veteran for one year or more immediately preceding the veteran's death, such marriage will be deemed to be valid. 38 U.S.C.A. § 103(a) 38 C.F.R. § 3.52; VAOPGCPREC 58-91; Sandoval v. Brown, 7 Vet. App. 7 (1994). In order for the Appellant to be prevail under the legal theory of a "deemed valid marriage," the evidence must satisfy the threshold criteria for a common law marriage. The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the RO did not address a "deemed valid marriage" in the context of a legal impediment, that is, California law does not recognize common law marriage, which is the "legal impediment, " to the Appellant's argument that she and the Veteran held themselves out as married more than a year before the Veteran died, further procedural development is needed to ensure VCAA compliance. Accordingly, the claim is REMANDED for the following action: 1. Notify the Appellant of the information and evidence needed to substantiate the claim for a "deemed valid marriage," specifically, 38 C.F.R. § 3.205(a)(6); what portion of the information and evidence VA will obtain; and what portion of the information and evidence the Appellant is to provide. 2. After the above development is completed, adjudicate the claim, applying 38 C.F.R. § 3.52 and VAOPGCPREC 58-91. If the benefit sought remains denied, furnish the Appellant a supplemental statement of the case and return the case to the Board. 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 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ____________________________________________ George E. Guido Jr. 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) (2008). Department of Veterans Affairs