Citation Nr: 1303035 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 09-09 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether the Appellant qualifies as a surviving spouse for the purpose of eligibility for Department of Veterans Affairs benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from October 1958 to January 1965. The Veteran died in December 2007. The Appellant contends she is his surviving spouse. The Appellant was married to the Veteran when he died, and the Appellant's status as the Veteran's surviving spouse is the question on appeal. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 31, 2008 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee that determined the Appellant was not eligible as a surviving spouse of the Veteran for VA purposes. FINDINGS OF FACT 1. The Veteran and the Appellant were married in June 1990 and had no children. 2. By the Appellant's own admissions, the Veteran and the Appellant were divorced in 2005. 2. The Veteran and the Appellant remarried in October 2007. 3. The Veteran died in December 2007. CONCLUSION OF LAW The Appellant is not recognized as the Veteran's surviving spouse for the purpose of eligibility for VA benefits. 38 U.S.C.A. §§ 101(3), 103(c), 1310 (West 2002); 38 C.F.R. §§ 3.50(b), 3.52, 3.53, 3.54, 3.205 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The 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 pertinent facts in this case are not in dispute, and the case is decided on the application of the law to the undisputed facts, the VCAA does not apply. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (2004), 69 Fed. Reg. 25180 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). Legal Principles 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 U.S.C.A. §§ 1304, 1310, 1311, 1318, 1541; 38 C.F.R. § 3.54. "Marriage" means a marriage 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. 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). A surviving spouse is defined as a person of the opposite sex who was the spouse of a 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. 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50. As noted, the validity of a marriage 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 C.F.R. § 3.1(j), see Sanders v. Brown, 6 Vet. App. 17 (1993). A valid marriage may be established by various types of documentary evidence, together with the appellant's certified statement concerning the date, place, and circumstances of dissolution of any prior marriage, provided that such facts, if they were to be corroborated by the evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205(a). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. In this instance, the evidence establishes that the Appellant and the Veteran were married in June 1990. They then divorced in 2005. Although the divorce decree is not in the record before the Board, the Board notes the Appellant acknowledged that she and the Veteran were divorced in 2005. She admitted to the divorce in both her claim for dependency and indemnity compensation and in her substantive appeal. In addition, the Veteran applied for nonservice-connected pension in February 2007, stating that he was not married (defined as never married, divorced, or widowed) with no dependents. The Board notes that VA granted the pension in a rating decision dated in August 2007 and awarded benefits based on the Veteran's status as single with no dependents. Based on the foregoing evidence, and finding no evidence to the contrary, the Board finds that the Appellant and the Veteran divorced in 2005. They then remarried in Tennessee in October 2007. A copy of the marriage certificate is of record, and is accepted as proof of marriage under 38 C.F.R. § 3.205. The Veteran died on December 22, 2007 in Tennessee, less than one year after the date of the remarriage and more than 15 years after the Veteran's separation from service in 1965. Furthermore, the Appellant and the Veteran did not have a child together. In her claim for benefits, she did not list any children. As noted, the Veteran did not list any dependent children in his pension claim. Therefore, the Board finds, as the Appellant and Veteran were married less than one year before the Veteran died, more than 15 years after the Veteran's separation from service, and did not have any children together, the Appellant does not meet the requirements for recognition as the Veteran's surviving spouse under 38 C.F.R. § 3.54. Furthermore, as to common law marriages, 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. 38 C.F.R. § 3.205(a)(6). The Appellant acknowledges that she and the Veteran were divorced but continued to live together as husband and wife except for some short periods of time when the Veteran was not with her. The Appellant is essentially describing a de facto marriage, which is a marriage relationship created by agreement and cohabitation rather than by ceremony, and is also referred to as a common law marriage. The Appellant appears to be arguing that she and the Veteran were in a common law marriage after the 2005 divorce until they received a license and held a marriage ceremony in October 2007. This is contrary to the Veteran's statement in his pension claim in February 2007that he was not married and had no dependents. The Board notes that until the Appellant and the Veteran remarried, the Veteran did not hold himself out as married and did not claim the appellant as his dependent-wife, which would have given him greater VA benefits. In addition, the only other evidence comes from the medical records. In February 2007, medical records indicate that, in planning for the Veteran's discharge, it was noted that he reported that he could return home to good family support. A consultation from this hospitalization states that the Veteran was divorced and living alone. The consultation report continued that although the ex-wife was involved in some way, the plan was to discharge the Veteran so he could live with his daughter. In a May 2006 consultation, the report noted that the Veteran is divorced and a hospital cover sheet listed the Veteran as the only guarantor. Another hospitalization cover sheet date in January 2007 lists the Appellant as the second guarantor with her last name listed by both her maiden name and the Veteran's name. The Board finds that this one listing on a hospitalization form and her statements are insufficient to establish that she and the Veteran, after the divorce, lived continuously with the Veteran from the date of the divorce to the date of their re-marriage, to establish a common law marriage. The Board acknowledges that hospital records dating from the month of the re-marriage, October 2007, to his death refer to the Appellant as his wife and VA received four days before his death a request by the Veteran to include his wife in his pension, but those records, occurring at the time of the remarriage or after are not relevant in determining the nature of the relationship of the Appellant and the Veteran between the date of the divorce and the remarriage. Those records only confirm and are consistent with the re-marriage in October 2007 and do not serve to establish a common law marriage existed before October 2007. Even if the Appellant and the Veteran continued to live together and held themselves out as husband and wife, 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, Tennessee. The State of Tennessee does not recognize common law marriages from within its borders, but instead requires the parties obtain a license first. Tenn. Code Ann. § 36-3-103; see also Lightsey v. Lightsey, 407 S.W.2d 684, 685 (1966). Thus, even if as the Appellant has asserted that they lived together as husband and wife, the record does not show, and the Appellant has not asserted, that, following their divorce in 2005, she and the Veteran remarried and a valid marriage under the laws of the State of Tennessee cannot be established on the basis of a common law marriage. Also, even if she and the Veteran lived in continuous cohabitation, as defined by 38 C.F.R. § 3.53 for continuous cohabitation, continuous cohabitation is a requirement when the parties to a valid marriage are separated, but not divorced. As the Appellant and Veteran were divorced and not separated, the provision for continuous cohabitation under 38 C.F.R. § 3.53 does not apply. Therefore, VA cannot recognize the Appellant as married to the Veteran between 2005 and October 2007 on the basis of a common law marriage because Tennessee does not recognize such a marriage. Any claim of a "deemed valid" marriage raised by the appellant would fail. 38 C.F.R. § 3.52. There is one other exception, not raised by the Appellant, where an attempted marriage of a claimant to the veteran was invalid by reason of a legal impediment, the marriage will nevertheless be deemed valid if the marriage occurred 1 year or more before the veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage, the claimant entered into the marriage without knowledge of the impediment, the claimant cohabited with the veteran continuously from the date of marriage to the date of death, and no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the veteran's death. 38 U.S.C.A. § 103(a); 38 C.F.R. § 3.52. This exception does not apply as the Appellant has acknowledged that she and the Veteran were divorced in 2005 and did not remarry until approximately two months before his death. Stated another way, there was no legal impediment for her or the Veteran to remarry, but they did not do so until approximately two months before his death. Thus, although the Appellant argues that she and the Veteran were married in total more than a year before he died, the Appellant and the Veteran were not married for a full year preceding his death, that is, from December 22, 2006 to December 2007. While the Board is sympathetic to the Appellant's claim, her marriage to the Veteran does not meet the criteria for recognition as his surviving spouse for entitlement to VA benefits. In summary, the Appellant has not established eligibility for VA benefits as a surviving spouse of the Veteran. Since the Appellant's claim fails because of the lack of entitlement under the law, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The Appellant's status as a surviving spouse for the purpose of eligibility for Department of Veterans Affairs benefits is denied ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs