Citation Nr: 1229526 Decision Date: 08/27/12 Archive Date: 09/05/12 DOCKET NO. 08-15 370 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to Department of Veterans Affairs (VA) Dependency and Indemnity Compensation (DIC), death benefits and accrued benefits as a surviving spouse of a Veteran. REPRESENTATION Appellant represented by: Shannon L. Brewer, Attorney at Law WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to May 1969. He died in February 2007, and the appellant is his widow. This case came to the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision from the RO that granted service connection for the cause of death, but denied DIC benefits. A hearing was held in September 2009 before the undersigned Veterans Law Judge sitting at the RO. A transcript of this hearing is associated with the claims file. In February 2010, the Board determined that the criteria for recognition of the appellant as the Veteran's surviving spouse for DIC, death benefits, or accrued benefits purposes had not been met. The Appellant appealed the decision to the United States Court of Appeals for Veteran's Claims (Court). In a December 2010 Order, the Court granted a Joint Motion, vacating the February 2010 decision and remanding the matter to the Board for additional consideration. In August 2011, the Board remanded the matter on appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for compliance with the Joint Motion. FINDINGS OF FACT 1. The appellant and the Veteran were married by a valid ceremony on March [redacted], 2006; they are not shown to have had a mutual agreement to be married or otherwise to have held themselves out as husband and wife in their community prior to March [redacted], 2006. 2. The appellant's valid marriage to the Veteran on March [redacted], 2006 was terminated by his death on February [redacted], 2007; there were no children born prior to or of the marriage. CONCLUSION OF LAW The criteria for the recognition of the appellant as the Veteran's surviving spouse for DIC, death benefits or accrued benefits purposes are not met. 38 U.S.C.A. §§ 103, 1102, 1304, 1541 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.1, 3.50, 3.53, 3.54, 3.205 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Court of Appeals for Veterans Claims (Court) has held that in the context of a claim for Dependency and Indemnity Compensation benefits, a VCAA notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). The RO provided a VCAA notice letter to the appellant in March 2012. The letter notified the appellant of what information and evidence must be submitted to substantiate a claim for DIC benefits and accrued benefits, as well as what information and evidence must be provided by the appellant and what information and evidence would be obtained by VA. The appellant was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of her claim to the RO. The letter notified the appellant of the definition of marriage for VA purposes pursuant to 38 C.F.R. § 3.1(j). The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Regarding the Hupp notice requirements, the March 2012 notice letter gave the appellant an explanation of the evidence and information required to substantiate a DIC claim and an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. The letter notified the appellant of the Veteran's service-connected disabilities at the time of his death. The Board concludes that the appellant has been afforded appropriate Hupp notice. The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The appellant was provided with Dingess notice of evidence necessary to establish effective dates in the March 2012 letter. The Veteran had 60 days to submit additional information and argument in support of her claim. The claim was readjudicated in July 2012, thus curing any lack of timeliness of notice. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The appellant was given notice of what type of information and evidence she needed to substantiate the claim of service connection for the cause of the Veteran's death and to establish that she should be recognized as the Veteran's surviving spouse for DIC, death benefits or accrued benefits purposes. The record establishes that the appellant has been afforded a meaningful opportunity to participate in the adjudication of the claim. There is no prejudice to the appellant in the Board's considering this case on its merits at this time. The Board finds the duty to notify provisions of VCAA have been fulfilled, and any defect in notice is nonprejudicial to the appellant and represents no more than harmless error. In this case, the appellant had a meaningful opportunity to participate effectively in the processing of her claim, and any error regarding VCAA notice including any timing error was not prejudicial. See Overton v. Nicholson, 20 Vet. App. 427, 439 (2006). The Board finds that all relevant evidence has been obtained with regard to the appellant's claim for recognition as the Veteran's surviving spouse for DIC, death benefits or accrued benefits purposes, and the duty to assist requirements have been satisfied. There is no identified relevant evidence that has not been obtained. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the appellant in substantiating the claim. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist her in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Law and Regulations VA death benefits may be paid to a surviving spouse who was married to the Veteran: (1) one year or more prior to the Veteran's death, or (2) for any period of time if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C.A. §§ 1102, 1304, 1541; 38 C.F.R. § 3.54. The term "surviving spouse" means 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 in the case of temporary separations) 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); 38 C.F.R. § 3.53. A surviving spouse means a person of the opposite sex whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the Veteran at the time of the Veteran's death. 38 C.F.R. § 3.50(b). For VA benefits purposes, a marriage means a marriage valid under law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. §103(c); 38 C.F.R. §3.1(j). The appellant has the burden to establish her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994); citing Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). Where an attempted marriage is invalid by reason of legal impediment, VA laws allows for certain attempted marriages to be nevertheless "deemed valid" if certain 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 claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits. 38 U.S.C.A. §103(a); 38 C.F.R. § 3.352. In Colon v. Brown, 9 Vet. App. 104 (1996), the United States Court of Appeals for Veterans Claims (Court) determined that in cases whether there is an impediment to entering into a common-law marriage, if the appellant was unaware of the impediment, then an otherwise invalid common-law marriage could be deemed valid. A marriage that is otherwise invalid under state law may be "deemed valid" for VA purposes if certain requirements are met. See 38 U.S.C.A. § 103(a) and 38 C.F.R. §§ 3.52, 3.205(c), as interpreted by VAOPGCPREC 58-91 (June 17, 1991), published at 56 Fed. Reg. 50,151 (1991). In its opinion, VA General Counsel held that 38 U.S.C.A. § 103(a), in part, provides that where it is established that a claimant for gratuitous veterans' death benefits entered 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. The requirement of a marriage ceremony by a jurisdiction that does not recognize common law marriage constitutes a "legal impediment" to such a marriage for purposes of that section. VAOPGCPREC 58-91 (June 17, 1991). 38 C.F.R. § 3.205 provides that marriage is established by one of several types of evidence including a copy of the public record of marriage, an official report from the service department as to a marriage which occurred while the veteran was in service, or an affidavit of the clergyman or magistrate who officiated. 38 C.F.R. § 3.205(a). In jurisdictions where marriages other than by ceremony are recognized, the marriage may be established by the 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 a result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as a 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)(6). The benefit of the doubt rule provides that the claimant will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the claimant prevails in his or her claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The appellant contends that she is entitled to DIC, death benefits and accrued benefits, on the basis that she lived with and cared for the Veteran for more than a year prior to his death in February 2007. She acknowledges that her ceremonial marriage to the Veteran, as shown by a marriage certificate, took place on March [redacted], 2006, 9 days short of one year prior to his death on February [redacted], 2007. However, she maintains that she had lived with the Veteran since January [redacted], 2006 and should be considered his spouse for purposes of receiving VA benefits. (See April 2008 Form 9). Applying VA law to the facts of the present case, the Board concludes that the fact that the appellant's marriage to the Veteran took place less than one year prior to the his death and produced no children is a bar to VA death benefits. As such, the current VA law thus prohibits her from receiving death benefits as the surviving spouse of the Veteran. 38 U.S.C.A. §§ 1102, 1304, 1541; 38 C.F.R. § 3.54. Congress has provided no exceptions to the controlling legal criteria, and the Board has no authority to disregard the statutory limitation on the award of death benefits where the marriage was less than one year prior to a veteran's death and no children were born either prior to or of the marriage. See 38 U.S.C.A. §7104. The appellant also appears to claim that she and the Veteran had entered into a common law marriage more than one year prior to his death, thus entitling her to recognition as a surviving spouse of the Veteran for purposes of receiving VA benefits. As noted, the validity of a marriage for VA purposes is determined based upon the law of the jurisdiction where the parties resided at the time of the marriage or when the rights to benefits accrued. 38 U.S.C.A. § 103(c); 38 C.F.R. §38 C.F.R. § 3.1(j); see Sanders v. Brown, 6 Vet. App. 17 (1993). In this case, the record reflects that the appellant and the Veteran were married in a civil ceremony in Illinois, but resided in Florida. Thus, the Board must look to the state law of Illinois and Florida to determine whether the appellant's relationship with the Veteran is deemed a valid marriage. A common law marriage, however, is not valid in the state of Illinois or Florida. Therefore, any attempted common law marriage between the appellant and the Veteran before the date of ceremonial marriage in March 2006 is not valid under state law and, by extension, would not be valid for purposes of 38 C.F.R. §§3.1(j) and 3.50(b). Also noted, a marriage that is otherwise invalid under state law may be "deemed valid" for VA purposes if certain requirements are met. See 38 U.S.C.A.§ 103(a) and 38 C.F.R. §§ 3.52, 3.205(c), as interpreted by VAOPGCPREC 58-91 (June 17, 1991), published at 56 Fed. Reg. 50,151 (1991). In its opinion, VA General Counsel held that 38 U.S.C.A. § 103(a), in part, provides that, where it is established that a claimant for gratuitous veterans' death benefits entered 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. The requirement of a marriage ceremony by a jurisdiction that does not recognize common law marriage constitutes a "legal impediment" to such a marriage for purposes of that section. VAOPGCPREC 58-91 (June 17, 1991). 38 C.F.R. § 3.205 provides that marriage is established by one of several types of evidence including a copy of the public record of marriage, an official report from the service department as to a marriage which occurred while the veteran was in service, or an affidavit of the clergyman or magistrate who officiated. 38 C.F.R. § 3.205(a). In jurisdictions where marriages other than by ceremony are recognized, the marriage may be established by the 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 a result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as a 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)(6). In this case, the appellant testified that she had lived with and cared for the Veteran for more than a year prior to his death. In order for the appellant to be successful under the foregoing "deemed valid" theory, however, the evidence must satisfy the threshold criteria for a common law marriage superimposed by 38 C.F.R. § 3.205 (a)(6); namely, 1) that there was an agreement between the appellant and the Veteran to be married; 2) that there was cohabitation between the parties; and 3) that the parties held themselves out as husband and wife and were generally accepted as such in the communities in which they lived. The appellant testified that she had known the Veteran for approximately six months prior to her marriage in March 2006. She testified that he and she held themselves out to be married on January 15, 2006 when they started living together. (See September 2009 Hearing Transcript p. 5). While the evidence indicates that the appellant and the Veteran cohabited for approximately 2 months prior to the ceremonial marriage in March 2006, the preponderance of the evidence shows that there was no agreement between the appellant and the Veteran to be married prior to the ceremonial marriage in March 2006. The Board finds that, despite their cohabitation and discussions of marriage, there is no evidence that the appellant's state of mind was such that she believed herself to be married, under common law, prior to the date of the actual marriage ceremony in March 2006. The appellant has submitted numerous statements from friends and relatives that she and the Veteran moved in with each other on January [redacted], 2006. Significantly, this evidence alone does not serve to establish that the Veteran and the appellant held themselves out to the community to be husband and wife prior to their valid ceremonial marriage in March 2006. Despite the appellant's assertion about her commitment to the Veteran, the evidence only supports the conclusion that the Veteran and the appellant did not intend to be married to each other earlier than the March 2006 civil ceremony. For these reasons, it cannot be found that there was an "attempted marriage" between the appellant and the Veteran more than one year prior to the Veteran's death. The record reasonably demonstrates that the appellant's state of mind was such that she did not believe that she and the Veteran had entered into a marriage, despite the absence of a state-issued marriage license and/or ceremony, prior to March [redacted], 2006. In other words, there is no showing that she entered into a relationship with the Veteran that would have constituted a valid common law marriage even if Illinois and Florida recognized such marriages. The provisions of 38 C.F.R. §3.52 are thus not applicable. The case law cited by the appellant can be distinguished from the instant case in that the parties in the cited cases met the requirements for a valid common law marriage by holding themselves out as husband and wife for many years prior to the Veteran's death. To some extent, the appellant appears to be raising an argument couched in equity. She essentially argues that she cared for the Veteran in his time of need. It is clear from the appellant's correspondence and testimony that she cared deeply for the Veteran and that his untimely death has left her with a profound sadness. While sympathetic to the appellant, the Board is nonetheless bound by the law and is without authority to grant benefits on the basis of equity. See 38 U.S.C.A. §§ 503, 7104 (West 2002 & Supp. 2011); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). This case is decided based on its application of this law to the pertinent facts. See Owings v. Brown, 8 Vet. App. 17 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171 (1992) [noting that the Court must interpret the law as it exists, and cannot extend benefits out of sympathy for a particular claimant]. Hence, the Board concludes that the evidence is insufficient to establish that a deemed 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 her valid marriage for the purpose of receiving VA benefits. 38 U.S.C.A. § 103; 38 C.F.R. §§ 3.1(j), 3.50, 3.352. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App 49 (1990). Accordingly, on this record, as the appellant may not be recognized as surviving spouse of the Veteran, the appeal must be denied. ORDER The claim for DIC, death benefits and accrued benefits as the surviving spouse of a Veteran is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs