Citation Nr: 1303293 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-33 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to recognition of the appellant as the deceased Veteran's surviving spouse for the purpose of establishing eligibility for VA death benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Appellant and M.H. ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from June 1966 to May 1970. He died in April 2009. The appellant claims to be the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a February 26, 2010 letter decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which denied the appellant's claim for death benefits on the basis that she was not recognized as the surviving spouse of the Veteran. The appellant disagreed with this determination, and perfected an appeal as to this issue. In January 2012, the appellant testified at a personal hearing, conducted via videoconferencing equipment, which was chaired by the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the Veteran's VA claims folder. The appellant submitted additional photographs directly to the Board in January 2012 accompanied by a waiver of initial consideration by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304 (2012). The Board has reviewed the physical claims file and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT 1. The appellant and the Veteran married in Oklahoma in November 2000. 2. The appellant and the Veteran divorced in Oklahoma in September 2005. 3. The Veteran died in Oklahoma in April 2009. His death certificate listed his marital status as "divorced." 4. The state of Oklahoma recognizes common law marriages as valid. 5. Pursuant to Oklahoma law, the existence of a common law marriage between the appellant and the Veteran was not shown by clear and convincing evidence at the time of the Veteran's death. CONCLUSION OF LAW The legal criteria for recognition as the Veteran's surviving spouse for the purposes of eligibility for VA death benefits have not been met. 38 U.S.C.A. §§ 101(31), 103(c), 1541(a) (West 2002); 38 C.F.R. §§ 3.1(j), 3.50, 3.205, 3.206 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In this case, the RO did not send the appellant a VCAA notice letter informing her of the evidence needed to establish entitlement to recognition as the surviving spouse of the Veteran. The appellant however is not prejudiced by this VCAA notice failure as she and her representative have demonstrated an actual knowledge of what is necessary to be recognized as the Veteran's spouse in this case. Indeed, the appellant has readily admitted she and the Veteran divorced in 2005, and does not challenge the validity of that divorce. She instead asserts that she has been in a common law marriage with the Veteran form the time of their divorce until the time of the Veteran's death. She has provided testimony suggesting that she and the Veteran cohabitated at times since their 2005 divorce, and held themselves out as a married couple in front of friends and family. She has also submitted a copy of a bank statement indicating a joint debt, and a number of lay statement from friends and family attesting to their observance of the appellant's ongoing care for the Veteran up to the time of his death. The Veteran's representative has specifically and correctly identified Oklahoma as a state that recognizes the validity of common law marriages [see the August 2011 RO hearing transcript, page 3], and he has copied portions of the M21-MR that specify the key elements that all jurisdictions have in common in determining whether a common law marriage is established, to include an agreement between the parties to be married, cohabitation, and a holding out to the public as married [see the November 29, 2011 Statement of Accredited Representative, page 3]. Accordingly, the Board concludes that any failure to provide VCAA compliant notice was indeed harmless, as the appellant has actual knowledge of what is required to substantiate her appeal. Moreover, a reasonable person would be expected to understand from the law, regulations and analysis contained in statements of the case of record what would be necessary to gain recognition as the Veteran's surviving spouse. Concerning the VA's duty to assist, the Veteran's own statements to VA prior to his death, his medical records, his death certificate, a joint bank statement, some photographs, and the appellant's and her friends' and family's statements of argument have been associated with the record. Neither the appellant nor her representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the appellant's appeal has been consistent with said provisions. As explained above, the Board is satisfied that any procedural errors in the originating agency's development and consideration of the issue on appeal were insignificant and nonprejudicial to the appellant. The appellant has been accorded ample opportunity to present evidence and argument in support of her claim. See 38 C.F.R. § 3.103 (2012). She has retained the services of a representative, and testified before the undersigned in January 2012 and before a decision review officer (DRO) in August 2011. With respect to the hearings, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or veterans law judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the current appellate issue was noted at the beginning of each hearing and testimony was provided concerning the issue on appeal. Neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearings. Accordingly, the Board will address the issue on appeal. Relevant law and regulations VA death benefits, including death pension, death compensation, and Dependency and Indemnity Compensation (DIC), are payable to a veteran's surviving spouse under certain circumstances. 38 U.S.C.A. §§ 1310, 1541(a). "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). The term "spouse" means a person of the opposite sex whose marriage to the veteran meets the requirements of 38 U.S.C.A. § 3.1(j). Except as provided in §3.52, "surviving spouse" means a person of the opposite sex whose marriage to the veteran meets the requirements of §3.1(j) and who was the spouse of the veteran at the time of the veteran's death and: (1) 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 (2) Except as provided in §3.55, has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50(b) (2012). Pertinent regulations provide that, where an attempted marriage is invalid by reason of legal impediment, VA law allows for certain attempted marriages to be "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. § 3.52. The state of Oklahoma recognizes common-law marriages as valid. Under Oklahoma law, "[a] common-law marriage requires competent parties, who enter the relationship by mutual agreement, exclusive of all others, consummating arrangement [sic] by cohabitation and open assumption of marital duties, and such relationship must be established by evidence that is clear and convincing." Moran v. Apfel, 198 F.3d 258, 1999 WL 999709 (C.A.10 (Okla.)) (citing Mueggenborg v. Walling, 836 P.2d 112, 113 (Okla. 1992). In cases involving alleged common-law marriages, there must be proof of a common-law marriage for the purpose of receiving VA benefits. Supporting evidence of common-law marriage should include 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 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. 38 C.F.R. § 3.205(a)(6). Proof of divorce or termination of a prior marriage can be established by a certified copy or certified abstract of final decree of divorce or annulment specifically reciting the effects of the decree. 38 C.F.R. § 3.206(b). The validity of a divorce decree will be questioned by VA only when such validity is put in issue by a party or a person whose interest in a claim for benefits would be affected thereby. 38 C.F.R. § 3.206. Analysis The appellant contends that she should be recognized as the surviving spouse of the Veteran because, although she and the Veteran divorced in 2005, they continued to live as a married couple in a common law marriage for all times from the date of the divorce to the time of the Veteran's death in 2009. The Board initially notes that the appellant in no way challenges the validity of her and the Veteran's September 2005 divorce. See 38 C.F.R. § 3.206. She has specifically testified that the divorce was necessary to stop the Veteran from being verbally abusive. The appellant claims that after the divorce, the Veteran stopped being abusive, and they "stayed together." See the January 2012 hearing transcript, pages 4 and 5. Indeed, in a March 2011 statement, the appellant asserted that she and the Veteran entered into a common law marriage following their divorce. See the appellant's handwritten statement, received by VA on March 28, 2011. Thus, the key question at issue in this case is whether the appellant and the Veteran did in fact enter into this common law marriage. If so, her status as a surviving spouse for the purposes of being eligible for VA death benefits would be established. As noted above, "marriage" for VA purposes 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). The appellant and the Veteran were married in the state of Oklahoma in November 2000 and divorced in September 2005. They both resided in the state of Oklahoma during the time period from the 2005 divorce to the date of the Veteran's death in 2009. Many states do not recognize the validity of a common law marriage. When such is the case, and the question at issue concerns the validity of a marriage, a "deemed valid" marriage for VA purposes can be established if the specific requirements of 38 C.F.R. § 3.52 are met, to include a showing that the claimant entered into the marriage without knowledge of the legal impediment, that is, without knowledge that his or her jurisdiction does not recognize the legal validity of a common law marriage. See also VAOPGCPREC 58-91. In this case, the state of Oklahoma does in fact recognize the validity of a common law marriage. Therefore, the focus in this case is not whether a "deemed valid" marriage existed between the appellant and the Veteran under the provisions of 38 C.F.R. § 3.52, but rather, whether a common law marriage existed under the laws of the state of Oklahoma. 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). As noted above, Oklahoma case law has established that "[a] common-law marriage requires competent parties, who enter the relationship by mutual agreement, exclusive of all others, consummating arrangement [sic] by cohabitation and open assumption of marital duties, and such relationship must be established by evidence that is clear and convincing." Moran v. Apfel, 198 F.3d 258, 1999 WL 999709 (C.A.10 (Okla.)) (citing Mueggenborg v. Walling, 836 P.2d 112, 113 (Okla. 1992)). Of particular import is the fact that Oklahoma law requires use of a "clear and convincing" evidentiary standard in determining whether a common law marriage existed between two parties. This standard is more onerous than the "benefit of the doubt" standard of proof usually employed in VA benefits adjudication, as established in 38 U.S.C.A. § 5107(b). The Court of Appeals for Veterans Claims has recently upheld the Board's use of a "clear and convincing" standard of proof in determining whether a common law marriage existed between two parties when that standard is in fact required by the jurisdiction within which the parties claim a common law marriage existed. See Burden v. Shinseki, 25 Vet. App. 178, 186 (2012) [holding that the Board did not err in applying Alabama's "clear and convincing proof" requirement when determining whether the parties were common law marred under Alabama common law]. Indeed 38 U.S.C.A. § 103(c) requires that a marriage shall be proven as valid according to the law of the place where the parties resided at the time of the marriage or the law of the place whether the parties resided when the right to benefits accrued. As such, the Board will examine the evidence in this case in accordance with Oklahoma's "clear and convincing" standard of proof. The appellant asserts that she and the Veteran immediately entered into a common law marriage following their September 2005 divorce, and that in their hearts, they were in fact married. See the January 2012 hearing transcript, page 6. In support of her assertions, she has testified that although she and the Veteran had separate residences following their divorce, they spent nearly every day and night together at either one or the other's residences, and that she received his mail at her residence. She asserts that they lived as if they were married, and that she prepared meals for the Veteran, cleaned his house, took him to all his doctor appointments, went to family gatherings and church together, and cared for him until his death. She has submitted lay statements from family members and friends attesting to her helping care for the Veteran until his death, and spending days and nights together. She has also submitted a March 2011 bank statement indicating payment on a loan which was in both her and the Veteran's names, and testified that she is in the process of paying off another credit card which both she and the Veteran took out prior to his death. In essence, through her presentation of the evidence described above, she claims that she and the Veteran agreed to be married, cohabitated, and held themselves out as a married couple to the community. Although the Board in no way doubts that the appellant and the Veteran maintained a relationship of sorts after their 2005 divorce, the Board does not find that the record demonstrates by clear and convincing evidence that the appellant and the Veteran did in fact agree to be married after their 2005 divorce, with cohabitation and open assumption of marital duties, as is required under Oklahoma state law to establish a common law marriage. Crucially, there is evidence of record demonstrating that the Veteran himself did not wish to enter into a marriage, or hold himself out as being married following his and the appellant's September 2005 divorce. Indeed, in October 2005, the Veteran contacted VA and specifically requested that VA take immediate action to remove his spouse [the appellant] from his VA compensation award. He specified that their divorce was finalized on September [redacted], 2005, and that he would like the appellant removed as soon as possible. See the October 24, 2005 Report of Contact. The Veteran never attempted to have the appellant added to his VA compensation award at any time subsequent. Further, the evidence of record demonstrates that in January 2003, prior to the appellant's and Veteran's divorce, the Veteran designated the appellant as both his emergency contact and his next of kin with his VA treatment center. See the Veteran's January 28, 2003 profile at the Jack C. Montgomery VA medical center (VAMC). Although the appellant now claims that after the 2005 divorce, she took care of all of the Veteran's health problems, to include taking him to and from his doctor's appointments, an April 2009 VAMC profile dated at the time of the Veteran's death indicates that the Veteran had changed his designated emergency contact information and next of kin from the appellant to his sons by a previous marriage. Significantly, under "marital status," this profile indicated that the Veteran was "divorced." See the Veteran's April 19, 2009 profile at the Jack C. Montgomery VA medical center. Other VA treatment notes dated after the appellant's and Veteran's 2005 divorce, but prior to the Veteran's death also indicate that the Veteran had hired a "paid caregiver" in his home, who at one point in February 2009 came to pick him up from the hospital and transport him home. See the Veteran's February 12, 2009 VA Discharge Plan. While the existence of a paid at-home caregiver does not in and of itself contradict the appellant's own assertions that she stayed with and cared for the Veteran at times prior to his death, the fact that the Veteran hired a paid at-home caregiver who on at least one occasion had to come to pick the Veteran up upon his discharge from a hospital stay does call into question the appellant's [and in turn the appellant's friends' and family's] assertions that she cared for the Veteran at home on a daily basis, accompanying him to all his doctor appointments, making his meals, dressing his wounds and regulating his medications. The Board adds that the appellant never mentioned the presence of an outside paid caregiver when discussing the extent of her own care of the Veteran with VA, and there is no documentation indicating that the Veteran ever mentioned the appellant and her role in his daily care to VA physicians following the September 2005 divorce. In addition, when the Veteran died in April 2009, it was his sons and not the appellant who organized the Veteran's funeral and burial. See the November 2009 Application for Burial Benefits filed by the Veteran's son, who apparently was living in Florida and not Oklahoma at the time. Pertinently, the Veteran's death certificate indicated that the Veteran's marital status at the time of his death was "divorced." Again, the appellant has provided no information as to why she, who is claiming to be a partner in a common law marriage, did not secure burial plots and funeral arrangements for the Veteran at his death. With respect to cohabitation in particular, the Board further notes that the appellant has offered contradicting accounts as to whether she and the Veteran lived together or apart during times subsequent to the 2005 divorce. Indeed, the appellant testified in January 2012 that prior to their 2005 divorce, she and the Veteran owned separated residences, and that the Veteran simply moved in with her when they were married in 2000. When they divorced in 2005, it appears from her testimony that they stayed with each other most nights at her residence, but sometimes at his residence. In any event, the appellant has asserted that even though they have two residences with two different addresses, they did cohabitate during the time period following the 2005 divorce to the time of his death. Crucially, and in contrast with her recent testimony, the appellant identified herself as the surviving spouse of the Veteran on her November 2009 application for death benefits, but specifically indicated "no" when asked if she lived continuously with the Veteran from the date of marriage to the date of his death. She indicated that she did not cohabitate due to the Veteran's abuse. See the appellant's November 2009 Application for Death and Indemnity Compensation, Death Pension and Accrued Benefits, page 3. In addition, when VA contacted the appellant in February 2010 and specifically asked if she was married to the veteran at the time of his death, she "explained that since the veteran was abusive - they were divorced and she did not live with him after their divorce." See the February 4, 2010 Report of General Information. The Board in no way doubts that the appellant and the Veteran maintained a relationship following their divorce in 2005, and that prior to his death, the appellant at times cared for the Veteran, made him meals, took him to see the doctor, and stayed overnight at his residence or vice versa, as is stipulated by the appellant and her friends and relatives. Crucially however, based on the appellant's original indication that she did not live with the Veteran after their 2005 divorce because of abuse, and her subsequent inconsistent assertions to the contrary made after she was denied spousal status by VA, the Board does not find the appellant's stipulation that they cohabitated prior to his death credible. With respect to "open" assumption of marital duties, the Board recognizes that the appellant and the Veteran paid at least one joint debt together, and that the appellant has submitted a March 2011 bank statement showing a loan amount in both of their names. While bank statements and joint credit cards opened in both parties' names can aid in demonstrating an "open" holding out to the public as a married couple, the Board finds it significant that the appellant's last name as listed on this bank statement is not the same as the Veteran's last name, and that all documents dated prior to their 2005 divorce do in fact address the appellant and the Veteran as having the same last name. In other words, it appears that following the divorce, the appellant changed her name back to her maiden or prior name, used before she and the Veteran were originally married in 2000. As such, while it is apparent that both the appellant and Veteran took out at least one joint debt following their divorce in 2005, the fact that the appellant took out the debt using her prior name and not her married name lessens the statement's probative weight in so far as it demonstrates a public open marital relationship between the two. Indeed, since 2005 the appellant has only referred to herself as having the Veteran's last name on a handful of occasions, and all have been in exclusive correspondence with VA. The Board adds that insofar as the lay statements of record tend to show a public open marital relationship, the Board has already found the lay observations of cohabitation less than credible in light of the appellant's own admission that she and the Veteran did not live together on her original application for death benefits. Further, the Board notes that in one lay statement from K.M., the appellant was identified as the Veteran's "former spouse," and it was noted that after the Veteran's and appellant's "mutual divorce" they still remained "loyal friends." Again, the Board in no way doubts that the appellant's and Veteran's relationship may have improved after the divorce. Still, even if perceived as loyal friends, such does not demonstrate an open holding out of each other as husband and wife. In light of all of the above, to include (1) a valid divorce in 2005 that was mutually agreed upon, (2) the Veteran's immediate removal of the appellant from his VA compensation award following their 2005 divorce; (3) his changing of his designated emergency contacts and next of kin at the VAMC from the appellant to his sons following his divorce; (4) his need for a paid in-home caretaker in spite of the appellant's own assertions that she cared for all of the Veteran's needs every day; (5) the fact that his own son from Florida facilitated the Veteran's funeral and burial and not the appellant; (6) that the Veteran's death certificate and VA treatment records dated at the Veteran's death listed the Veteran's marital status as "divorced"; (7) that the Veteran started living at his own residence following the divorce; (8) that the appellant has provided conflicting accounts as to whether she and the Veteran cohabitated after the divorce, which as explained above, serve to weaken the credibility of her and her family's and friends' recent statements to VA in support of a finding of cohabitation; (9) that the appellant changed her name from the Veteran's last name to her prior name following the 2005 divorce, and has not used her married name outside of dealings with VA, to include in incurring debts with the Veteran; and (10) that a lay statement of K.M. characterized the appellant as the Veteran's "former spouse," and described their relationship as one of "loyal friends" following their divorce, and not a married couple, the Board finds that the record lacks clear and convincing evidence that the appellant and the Veteran did in fact agree to be married after their 2005 divorce, with cohabitation and open assumption of marital duties, as is required under Oklahoma state law to establish a common law marriage. The Board reiterates that it certainly believes the appellant when she states that her relationship with the Veteran improved following their divorce, and the Board in no way doubts that she and the Veteran acted in some of the same ways they did when they were a married couple prior to the 2005 divorce. Unfortunately, the evidence supplied in favor of her claim, to include the lay statements of her family and friends, her own assertions, photographs showing them together after the divorce, and evidence showing the existence of joint debt, when weighed against the long list of evidence calling into question the validity of the marriage noted above, fails to show by clear and convincing proof a valid common law marriage as defined by the state of Oklahoma. The Board notes in passing that the appellant at times during her appeal has asserted that she did not know her and the Veteran's divorce would preclude her from being recognized as a surviving spouse and in turn being awarded death benefits from the VA. The Board wishes to make clear that divorce in and of itself is not a "legal impediment" as stipulated by the regulations in 38 C.F.R. § 3.52, as the appellant was free to remarry at any time in the years following the 2005 divorce up until the Veteran's death in 2009 either by ceremony or through common law marriage. Indeed, Oklahoma recognizes common law marriages and has established a set of standards identified above which were unmet in this case, that would allow for legal recognition of such a marriage. In addition, the Board also notes that the appellant and her representative have frequently asserted during the course of the appeal that the 2005 divorce was required in an effort to stop the Veteran from being abusive. The Board fully understands that such was the case, but wishes to make clear that the regulations pertaining to separation, in particular, separation due to misconduct of the veteran without fault of the spouse, only apply to couples who are married and stop cohabitating. See 38 C.F.R. § 3.50(a) and (b). In other words, if separation of a married couple occurs requiring a period of time where there is no cohabitating, and such is due to the misconduct of the Veteran and not the fault of the survivor, such separation is not held against the survivor in the determination of "surviving spouse" status. The Veteran and the appellant did not separate in 2005, they divorced. The word "divorce" does not appear in the regulation and the requirements of a valid marriage exclude the possibility of reading divorce into this separation clause. As such, the reason for the divorce, even if due to Veteran's misconduct, is thus not relevant to the outcome of this case. In closing, the Board finds that pursuant to Oklahoma law, the existence of a common law marriage between the appellant and the Veteran was not shown by clear and convincing evidence at the time of the Veteran's death. As such, the appellant may not be recognized as the Veteran's surviving spouse for the purposes of establishing eligibility for VA death benefits. ORDER Entitlement to recognition of the appellant as the deceased Veteran's surviving spouse for the purpose of establishing eligibility for VA death benefits is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs