Citation Nr: 1301168 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 09-50 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether the appellant can be recognized as the decedent's surviving spouse for the purpose of benefits administered by the Department of Veterans Affairs. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. R. Olson, Counsel INTRODUCTION The decedent had active duty for training from November 1975 to March 1976, as well as more than 20 years of subsequent National Guard service. The decedent's personnel records show service with the Tennessee National Guard and do not show transfers to the National Guard of any other state. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board has not only reviewed the decedent's physical claims file but also the file on the "Virtual VA" system to insure a total review of the evidence. The issue in this case has been variously described. However, both the June 2008 decision and the October 2009 statement of the case explained that benefits were being denied because the appellant was not the surviving spouse of the decedent within the meaning of the applicable law and regulations. That was the determination the appellant disagreed with and appealed. Consequently, the Board finds the issue is as set forth on the first page. FINDINGS OF FACT 1. The appellant divorced the decedent prior to his death. 2. The appellant did not establish a common law marriage to the decedent prior to his death. CONCLUSION OF LAW The appellant is not the decedent's surviving spouse under the laws and regulations providing VA benefits. 38 U.S.C.A. § 101(3) (West 2002); 38 C.F.R. §§ 3.1(j), 3.50 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The death certificate shows the decedent died in May 2007. The informant was the appellant. She was listed as his wife and his marital status was listed as married. Their address was given as being in Tennessee. The cause of death was cardiogenic shock, due to idiopathic heart failure, due to acute renal failure. In her March 2008 claim for VA benefits, the appellant reported that she had married the decedent in December 1976 and the marriage ended upon the decedent's death in May 2007. A copy of the 1976 marriage certificate was submitted. The appellant's claim also reported the marriage to the decedent in December 1976 and stated that the marriage ended in divorce in September 1988. She acknowledged that she married E. W. in November 1993 and divorced him in September 1998. Documentation for the divorces or re-marriage was not submitted. In a certified statement dated in April 2008, the appellant stated that she and the decedent were married in December 1976 and remained married for 12 years. They divorced and separated for approximately 2 months. They did not remarry, but lived together from then until the decedent's death. Similar information was provided in the notice of disagreement. In her substantive appeal, the appellant wrote that she lived with the decedent while married to E. W. and continued to live with the decedent after her divorce from E. W. in September 1998. She also reported that she lived with the decedent in Florida and Georgia, with both she and the decedent holding themselves out as married, thus creating a common law marriage. In January 2011, a hearing was held before the undersigned Veterans Law Judge, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). The issues were fully explained and the evidence discussed, including the possible submission of additional evidence. The transcript of the hearing is in the claims folder. The appellant testified that she married the decedent in 1976 and was divorced in 1988. She married E. W. but only stayed with him for three months. She returned to the decedent and stayed with him until his death. She reported that she divorced E. W in 1998, but never remarried the decedent. She asserted that she had a common law marriage and also lived with the decedent as husband and wife in Florida and Georgia. Conclusion The appellant claims to have entered into a common law marriage with the decedent prior to his death. VA follows the applicable state law in determining whether a marriage is valid. 38 C.F.R. § 3.1(j). However, common law marriage is not recognized in the state of Tennessee. See West's Tennessee Code Annotated, Chapter 3, Part 1, §36-3-103, see also Smith v. North Memphis Sav. Bank, 1905, 89 S.W. 392, 115 Tenn. 12. The appellant has also asserted that she and the decedent lived together as husband and wife in Florida and Georgia, although she has not provided supporting details such as dates of residence, places of residence, or documentation of residence. Nevertheless, since these jurisdictions do not recognize common law marriage, living in those states as husband and wife does not establish a common law marriage. Florida law specifically states that no common law marriage entered into after January 1, 1968 shall be valid, with certain exceptions that do not apply in this case. See West's Florida Statutes Annotated, Title XLII, Domestic Relations, Chapter 741, § 741.211. Georgia recognizes common law marriages only if performed by January 1, 1997. West's Code of Georgia Annotated, Title 19, Domestic Relations, Chapter 3, Article 1, § 19-3-1.1. In this case, the appellant could not contract a common law marriage with the decedent in Georgia before January 1, 1997, because she was still married to E. W., until divorced in 1998. See Simpson v. King, 259 Ga. 420, 383 S.E.2d 120 (1989). (There was no common law marriage between a man and a woman with whom he was cohabiting, where final decree of divorce had not been entered with respect to woman who man was married to.) The preponderance of evidence in this case shows that the appellant did not have a valid marriage with the decedent at the time of his death. Therefore, she does not qualify as his surviving spouse for the purposes of VA benefits. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 510 7(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA) and subsequent legislation, VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In a letter dated in March 2008 the RO provided the appellant with an explanation of the type of evidence necessary to substantiate her claims, as well as an explanation of what evidence was to be provided by her and what evidence the VA would attempt to obtain on her behalf. The initial notice letter was provided before the adjudication of her claims in June 2008. VA has complied with the applicable notice requirements of VCAA and has no outstanding duty to inform the appellant that any additional information or evidence is needed. Therefore, the Board may decide the appeal without a remand for further notification. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The decedent's service medical records have been obtained. His available post-service treatment records have also been obtained. The appellant has been afforded a hearing. Significantly, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist her in the development of her claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The appeal to be recognized as the decedent's surviving spouse for the purpose of VA benefits is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs