Citation Nr: 1309501 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 07-21 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for the purpose of establishing eligibility for Department of Veterans Affairs benefits. ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active service from March 1969 to June 1971, plus eight years of prior active service. He died in March 2003. The appellant seeks recognition as his surviving spouse for VA benefits purpose. This matter came before the Board of Veterans' Appeals (Board) on appeal from an adverse decision by the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas. In February 2009, the Board remanded the issue on appeal in order for the Agency of Original Jurisdiction (AOJ) to review a statement by the Veteran's son that was submitted without a waiver. In October 2012, the RO reviewed the statement and issued a Supplemental Statement of the Case (SSOC) that continued the previous denial. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the factual determinations in this appeal. However, the Virtual VA paperless claims processing system does reveal that a December 2011 RO rating decision awarded service connection for the cause of the Veteran's death, service connection for unstable angina/coronary artery disease associated with herbicide exposure, and entitlement to basic eligibility to Dependents' Educational Assistance. In March 2012 and April 2012, the Veteran's surviving sons were notified that they would be each receiving half of any compensation. In April 2012, the appellant stated that she wanted benefits for any Agent Orange disability. FINDINGS OF FACT 1. The Veteran and the appellant officially divorced on October [redacted], 1983. 2. The Veteran died on March [redacted], 2003; according to the Veteran's death certificate he was divorced at the time of his death. 3. Following the divorce in October 1983, the Veteran and the appellant did not establish an informal marriage under Texas law as the credible evidence establishes that the Veteran did not agree to become married to the appellant, did not live with the appellant as husband and wife, and did not represent himself to others as being married to the appellant. 4. Following the divorce in October 1983, the Veteran did not attempt to establish a marriage with the appellant a year or more prior to his death, and there were no further children born between the Veteran and the appellant. CONCLUSION OF LAW The criteria for recognition of the appellant as the surviving spouse of the Veteran have not been met. 38 U.S.C.A. §§ 103, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.50-54, 3.204-3.211, 3.215 (2012); VAOPGCPREC 58-91 (June 17, 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Here, the appellant filed an application for DIC benefits in November 2005. A March 2006 RO letter notified the appellant that she could not be paid DIC benefits on the basis of being a surviving spouse as the record reflected she had been divorced from the Veteran. The appellant responded by submitting a notice of disagreement. By letter dated June 1, 2006, the RO notified the appellant of the criteria for establishing entitlement to DIC benefits as a surviving spouse, to include the types of evidence and/or information deemed necessary to establish a common law marriage. The RO further advised the appellant of the respective duties on the part of herself and VA in developing her claim. Additionally, the RO provided the appellant a VA Form 21-4170 (Statement of Marital Relationship) and VA Form 21-4171s (Supporting Statement Regarding Marriage) to assist in the development of the claim. The RO issued a formal Administrative Decision in February 2007, and issued a Statement of the Case in April 2007. The claim was again readjudicated in an October 2012 SSOC. As reflected above, the RO technically did not provide pre-adjudicatory VCAA notice as the RO's initial adverse determination was based upon a record showing a formal divorce which called into question the appellant's eligibility for the benefit being sought. In any event, the appellant did receive content complying VCAA notice as it pertains to the applicable facts at issue prior to the formal Administrative Decision in February 2007. Thereafter, any timing deficiency was cured with a readjudication of the claim in the October 2012 SSOC. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). As the claim remains denied, there is no prejudice to the appellant for lack of notice regarding the criteria for establishing an initial disability rating and effective date of award. As to any duty to assist the appellant, the appellant submitted evidence and statements relevant to this claim and has not identified any outstanding evidence. She waived her right to a hearing before the Board. The Board is satisfied that the RO took every effort to assist the appellant in submitting the necessary evidence to substantiate her appeal. II. Analysis The appellant seeks to establish her status as a surviving spouse of the Veteran for Dependency and Indemnity Compensation (DIC) benefit purposes. Governing law provides that DIC benefits may be paid to the surviving spouse of a veteran if certain requirements are met. 38 U.S.C.A. §§ 1304, 1310, 1311, 1318, 1541. "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 for VA purposes is defined as 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; 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 fault of the spouse; and (2) has not remarried or has not since the death of the Veteran lived with another person of the opposite sex and held himself/herself out openly to the public to be the spouse of such other person. 38 C.F.R. §§ 3.50(b), 3.53. 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). The State of Texas recognizes a "common law" marriage which is called an "informal marriage." Tex. Fam. Code Ann. § 2.401(a)(2) (West 2006). An informal marriage may be proved by evidence that: (1) the parties agreed to be married and after the agreement; (2) they lived together in Texas as husband and wife; and (3) they represented to others that they were married. Id. See Lewis v. Anderson, 173 S.W.3d 556, 559 (Tex. App.-Dallas 2005). To establish an agreement to be married, evidence must show that the parties intended to have a present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife. Small v. McMaster, 352 S.W.3d 280, 283 (Tex. App.-Houston [14th Dist.] 2011, pet. filed); Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App.-Houston [1st Dist.] 1991, writ denied). The proponent of a common-law marriage may prove an agreement to be married by circumstantial as well as direct evidence. Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993); Lewis, 173 S.W.3d at 559. Where a DIC claimant submits evidence that an attempted marriage was invalid because of a legal impediment, such as the non-recognition of common law marriages, the marriage will still be "deemed valid" if (1) the marriage occurred one year or more before the veteran died or if a child was born of the marriage; (2) the claimant entered into the marriage without knowledge of the legal impediment; (3) the claimant cohabitated with the veteran continuously from the date of marriage to the date of death; and (4) no claim has been filed by a legal surviving spouse who has been found to be entitled to death benefits. 38 U.S.C.A. § 103(a); 38 C.F.R. § 3.52. In VAOPGCPREC 58-91 (June 17, 1991), VA's General Counsel summarized the meaning and intent of 38 U.S.C.A. § 103(a) as follows: Section 103(a) of title 38, United States Code, provides in part 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 which does not recognize common-law marriage constitutes a "legal impediment" to such a marriage for purposes of that section. The regulation defining continuous cohabitation, 38 C.F.R. § 3.53, states as follows: 3.53 Continuous cohabitation. (a) General. The requirement that there must be continuous cohabitation from the date of marriage to the date of death of the veteran will be considered as having been met when the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. Temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation. (b) Findings of fact. The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason which did not show an intent on the part of the surviving spouse to desert the veteran, the continuity of the cohabitation will not be considered as having been broken. State laws will not control in determining questions of desertion; however, due weight will be given to findings of fact in court decisions made during the life of the veteran on issues subsequently involved in the application of this section. In Gregory v. Brown, 5 Vet. App. 108 (1993), the United States Court of Appeals for Veterans Claims (Court) identified a two-part test to determine whether a spouse can be deemed to have continuously cohabited with a veteran even if a separation has occurred. First, the spouse must be free of fault in the initial separation. Gregory, supra, at 112. Second, the separation must have been procured by the veteran or due to his misconduct, with the fault determination based on an analysis of the conduct at the time of separation. Id. In Alpough v. Nicholson, 490 F.3d 1352 (Fed. Cir. 2007), the Federal Circuit Court held that the definition of "desert" in 38 C.F.R. § 3.53 intended to invoke the well-established meaning of "desert" in common law family law. According to Alpough, the generally recognized common law definition of "desert" means that a separation by mutual consent does not constitute desertion unless the separation resulted from misconduct, or communication of a definite intent to end the marriage, by the surviving spouse. Notably, however, the Federal Circuit Court observed that 38 C.F.R. § 3.53(b) determined that state laws did not control in determining questions of desertion, although issues such as the validity of marriage were determined by state law. The validity of a divorce decree regular on its face will be questioned by VA only when such validity is put in issue by a party thereto or a person whose interest in the claim for VA benefits would be affected thereby. 38 C.F.R. § 3.206. Where the issue is the validity of marriage to a veteran following a divorce, the matter of recognition of the divorce by VA (including any question of bona fide domicile) will be determined according to the laws of jurisdictions specified in § 3.1(j). One claiming to be the spouse of a veteran has the burden to come forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). In pertinent part, the Veteran and the appellant married in December 1972. Between 1978 and 1983, they obtained some marital counseling therapy. The Veteran was reported as having a history of life-long dissatisfaction with himself and his employment circumstances. He had problems with substance abuse as well as controlling his anger. The appellant was reported as being highly resistive to acknowledging that their marriage was a major source of conflict for the Veteran, and the Veteran described being confused by the appellant's histrionic behavior. He acknowledged over-reacting to situations which made him angry. For example, when having an argument with the appellant, he tossed a drink in her face rather than verbally respond. The Veteran filed an original claim for VA compensation in September 1985. On his VA Form 21-526, he identified himself as divorced from the appellant with the appellant having custody of their two sons. However, he listed the same mailing address as the appellant in [redacted], Texas. At that time, the Veteran submitted an October [redacted], 1983 Divorce Decree between himself and the appellant issued by the District Court of [redacted] County, Texas. Notably, the appellant prosecuted the divorce action and kept sole possession of the home which she owned in [redacted], Texas. The Veteran also submitted Certificate of Births for children of the Veteran and the appellant born in 1973 and 1975. Additionally, the medical information submitted with the VA benefits application reflected that the Veteran was diagnosed with schizoaffective disorder manifested by insomnia, impaired concentration, social and occupational withdrawal, impaired judgment, psychomotor retardation and obsessive compulsive ruminations. In a VA Form 21-4138 filed in May 1986, the Veteran reported a new mailing address in [redacted], Texas. In July 1987, the Veteran was hospitalized due to polysubstance abuse and severe major depression. He listed the appellant as an emergency contact. On a VA Form 21-527 (Income-New Worth and Employment Statement) received in April 1989, the Veteran identified himself as divorced from the appellant and being in arrears of $3,000 for child support payments. In May and June 1991, the Veteran underwent 35 days of inpatient treatment at a VA Substance Abuse Treatment Program (SATP). He had recently moved from Big Springs, Texas, and was currently homeless. In a May 1991 statement, the appellant reported that she was "once married" to the Veteran and they had two sons. She stated that she had not talked to the Veteran since October at his father's house when he came down to help his son. She reported that the Veteran had a history of drug and alcohol use with some depression which did not interfere with his ability to work. She was concerned that the Veteran's father put the Veteran in the hospital for life. She was asking for help to prove that the Veteran was not as crazy as his father was saying and to figure out where the Veteran was and if there was a check involved. She stated that she was married to the Veteran for 13 years, and knew his family situation very well. She continued to live at the same address in [redacted], Texas. A July 1991 VA examination report included the Veteran's report of being married to the appellant for 13 years. It was reported that "[t]he marriage ended after 13 years, because [the Veteran] withdrew, frequently took off, and was continuously in and out of hospitals." The Veteran described having two sons from this marriage whom he saw "infrequently." He denied any relationships since his divorce. He also described a postservice history of alcohol and drug abuse. The examiner offered an impression that the Veteran suffered from a severe mood disorder which significantly interfered with his social functioning. In July 1991, the appellant sent another letter to the VA stating that the Veteran may have been tied up and shot up with "dope" by family members and another accomplice and driven to the hospital. She stated that she saw him on a Sunday and he was fine and then, two days later, he called to say he was leaving. She stated that after her and the Veteran divorced he had a hard time, had gotten hurt and then fired from a job as a cement truck operator. She stated that she was with the Veteran for 12 years and there were problems because of his family and an inability to handle stress. After the divorce, the Veteran would stop by her house every night keeping their two sons. He had insisted on paying child support, and gave the boys extra money. However, the Veteran had not paid any child support over the last three years. She stated that the Veteran's family stated they did not where he was and she was asking for help; she believed that the Veteran was committed so his family could get money. The Veteran submitted another application for VA benefits in May 1996. At this time, the Veteran listed a mailing address in [redacted], Texas. The Veteran's VA treatment notes include a June 1996 social history of the Veteran being previously married once for 11 years and divorced since 1983 and that he currently lived with his girlfriend of four years. He also denied having any contact with his family. At an October 1996 VA mental disorders examination, the Veteran reported having relationship problems with his "lady friend of four years" which probably derived from his own feelings of uselessness and worthlessness. At an October 1996 VA general medical examination, the Veteran reported being divorced from his first wife since 1983 and living with a "common law wife" since 1992. A May 1997 VA treatment note reflected that the Veteran had been homeless, and unable to find work after a cardiovascular accident (CVA). It was reported that he had been living with his "common-law wife" from 1992 to several weeks previous, and that they had split up as she needed to find a place to stay. A June 1997 VA treatment record recorded the Veteran's history of being divorced since 1983 and having no contact with his family since that time with the exception of his sister. He had been homeless since early April 1997. His main obstacles to treatment consisted of a lack of family and social support. A VA Form 21-4138 signed by the Veteran in June 1997 listed an address in [redacted], Texas, which was different from that of the appellant. On a VA Form 21-527 received in September 1998, the Veteran reported being divorced from the appellant since 1983. He was not living with the appellant, and did not know her current address. He listed an address in [redacted], Texas. On a VA Form 21-0512V-1 (Section 306 Eligibility Verification Report (Veteran)) received in November 1998, the Veteran reported being unmarried. In a VA Form 21-527 received in July 1997, the Veteran reported being divorced from the appellant in "86." He responded with "Not Applicable" (NA) as to whether they lived together as well as the reason for separation. A March 1999 VA medical record included the Veteran's report of living in [redacted], Texas, but having no contact with his sons. He also had no family support. In March 2001, the Veteran contacted VA to provide a new address in [redacted], Texas. A July 2001 VA clinic record noted that the Veteran had been homeless and recently moved to Houston, Texas. A VA Form 5655 (Financial Status Report), submitted in December 2001, included the Veteran's report of not being married. He listed an address in [redacted], Texas. A Certificate of Death reflects that the Veteran died in March 2003 while living in Houston, Texas. His marital status was listed as divorced, and the informant was listed as the Veteran's sister. Notably, the Veteran's sister processed the Veteran's VA burial benefit claim. In October 2003, the appellant filed a claim for DIC benefits via a VA Form 21-534. She reported being divorced from the Veteran in October 1983 "due to abuse." She had not remarried. The appellant specifically denied having lived continuously with the Veteran since the date of marriage. She described the Veteran's depression and drug abuse as causing fighting which led to their divorce. In a statement received in June 2004, the appellant indicated not having possession of the Veteran's death certificate, but noted that her son had been present at the funeral. On June 15, 2004, the RO sent the appellant notice that her DIC benefit claim was denied on the basis that she could not be recognized as a surviving spouse due to a divorce with the Veteran. On November 10, 2005, the appellant filed another VA Form 21-534. At this time, the appellant reported living "off and on" with the Veteran from the date of marriage to date of death. She identified the cause of separation as due to the Veteran's uncontrolled abuse resulting from his mental state and drug use which caused her to become ill with diabetes and high blood pressure. In a statement received in March 2006, the appellant alleged that she had lived with the Veteran for a year or more after their divorce. Her handwriting is difficult to read, but she appears to assert that the Veteran was abusive to herself and her daughter and had threatened to kill. She described the Veteran as abusing drugs and alcohol. In a statement received in June 2006, including a VA Form 21-4170, the appellant asserted that she had a common law marriage with the Veteran since 1988 until the time of his death in 2003, although the Veteran had been away from the home due to traveling for work and hospitalizations. In a VA Form 21-4171 received in June 2006, a witness F.L., who described himself as a friend to the Veteran and the claimant since 1981, attested that the Veteran and the appellant were generally known to be husband and wife. This witness indicated talking and visiting both the Veteran and the appellant on a daily and weekly basis. He was aware of the prior divorce, but noted that the Veteran and the appellant never separated. They had lived in [redacted], Texas, since 1988. The Veteran was described as living with the appellant off and on due to his hospitalizations, traveling and depression. In another VA Form 21-4171 received in June 2006, another witness (who appears to be the spouse of F.L.) provided a similar impression as F.L. She asserted that she had heard the Veteran and the appellant refer to themselves as husband and wife, and that they had lived together in [redacted], Texas until the time of the Veteran's death in 2003. This witness asserted that the Veteran and the appellant had not lived together continuously as the Veteran had jobs, and was in and out of hospitals. In a VA Form 9 filing in June 2007, the appellant described the Veteran as living in her home whenever he was not out of town working. He had always remained in touch. At times, the Veteran had been abusive towards herself and her daughter due to drug use with periods of separation caused by his behavior. He had been angered by her refusal to remarry while he continued to abuse drugs. His son had made terminal hospitalization decisions as well as funeral arrangements. She had been too sick to attend the funeral. A June 2007 statement from the Veteran's son asserted that the Veteran always maintained family contact, and had lived with the appellant for long periods of time. For this reason, the appellant maintained the Veteran's last name. The Veteran was described as being sick and mentally abusive to the appellant, and had uttered untrue statements regarding the family. The Veteran's son asserted that the Veteran had been engaged with the appellant and living in the household until the time of his death in 2003. In October 2010, the RO contacted the Veteran's sister to determine the whereabouts of the Veteran's sons. The Veteran's sister had not talked to them in awhile, but knew that one son lived in [redacted], Texas. She believed the other son was in prison. A November 2010 statement from the Veteran's other son reported that the Veteran had a disease which rendered him unable to maintain physical activities at work or at home which had a negative effect on the quality of life of the Veteran and his family. At the outset, the record establishes that the Veteran and the appellant officially divorced on October [redacted], 1983. There is no dispute of fact on this issue. The appellant is not asserting that the divorce decree is invalid, see 38 C.F.R. § 3.206, or that she formally remarried the Veteran. Thus, in order to establish her eligibility for VA DIC benefits, the appellant must show that she established a common law marriage with the Veteran after the October 1983 divorce. The appellant has provided several different accounts with regard to her relationship with the Veteran following their divorce in October 1983. She alleges that 1) she did not live continuously with the Veteran following their divorce, 2) that they lived together but she refused to remarry the Veteran while he abused drugs, or 3) that she had an agreement with the Veteran to live together as husband and wife, and had done so continuously since 1988 except for circumstances of convenience or necessity. All of these accounts cannot be true at the same time. The credible evidence reflects that, after the divorce in October 1983, the Veteran had maintained some contact with the appellant. For example, on his September 1985 application for VA benefits, he listed the appellant's address as his own. Additionally, during a hospitalization in 1987, the Veteran listed the appellant as an emergency contact. However, the credible evidence of record overwhelmingly establishes that the Veteran and the appellant did not establish an informal marriage under Texas law after their October 1983 divorce as the credible evidence establishes that the Veteran did not agree to become married to the appellant, did not live with the appellant as husband and wife, and did not represent himself to others as being married to the appellant. In this respect, the record reflects that, as of May 1986, the Veteran had continuously used a different mailing address than that of the appellant which tends to weigh against a finding that the Veteran continuously lived with the appellant since 1987 as claimed. In fact, the Veteran began to experience periods of homelessness in 1997 following a CVA due to an inability to work. This evidence is not consistent with the appellant's allegations that the Veteran only lived away from her when he had found employment. The record also reflects numerous, unequivocal written assertions by the Veteran beginning in September 1985 that he was divorced from the appellant, and had not been living with the appellant. See VA Form 21-526 received September 1985; VA Form 21-527s received in April 1989, September 1998 and July 1997; VA Form 21-0512V-1 received in November 1998; VA Form 5655 received in December 2001; VA examination reports dated July 1991 and October 1996; and VA treatment records dated May and June 1997. In addition to the above, the available statements from the Veteran include his assertions in 1996 and 1997 that he had been living with his "common-law" wife since 1992, who was clearly not the appellant. This evidence tends to establish that the Veteran had agreed to live with someone other than the appellant as husband and wife, and his direct representation that he had been married to a person other than the appellant. Additionally, in reporting the Veteran's death, the Veteran's sister identified the Veteran as divorced which reflects her impression that the Veteran and the appellant had not agreed to remarry, and held themselves out as married, prior to his death. All of this evidence tends to prove that, after the October 1983 divorce, the Veteran did not agree to become married to the appellant, did not live with the appellant as husband and wife, and did not represent himself to others as being married to the appellant. On the other hand, the appellant currently asserts that she had established a common-law marriage to the Veteran which began in approximately 1988. She has supported this assertion by providing corroborating statements from the two sons of the Veteran and the appellant as well as friends of the Veteran and the appellant since 1981. These statements, if true, could support a finding of common law marriage prior to the Veteran's death. See generally 38 C.F.R. § 3.205(a). Unfortunately, the Board finds that the allegation of common law marriage by the appellant and her witnesses are not credible when viewed against the entire evidentiary record. The appellant's first documented statement of this matter, in May 1991, included her own reference to being "once married" to the Veteran. This past-tense statement is not consistent with her current allegation that she had been living with the Veteran in a common law situation since 1988. The appellant's next documented statement of this matter, in July 1991, included her own reference that, after their divorce, the Veteran visited the house on a nightly basis to keep his sons. At that time, she had not received child support payments for over three years and did not know the Veteran's whereabouts. This statement tends to prove that the Veteran visited the appellant's house, but did not live at her house, and had abandoned financial support of the children since approximately 1988 - which is the time period wherein the appellant alleges she began continuous cohabitation with the Veteran. The appellant's next documented statement of this matter, in the October 2003 application for DIC benefits, included her specific denial that she had lived continuously with the Veteran since the date of her marriage. At this time, she described the Veteran's actions as causing their divorce. This statement by the appellant tends to prove that she considered herself as divorced from the Veteran, and that she had not lived with the Veteran together in Texas as husband and wife after their divorce in 1983. After receiving an initial denial of benefits on June 15, 2004 on the basis that she had been divorced from the Veteran at the time of his death, the appellant next reported living with the Veteran "off and on" (November 2005), then asserted a common law marriage (June 2006), and then reported that they had lived together but that the appellant had refused to remarry the Veteran until he stopped abusing drugs (June 2007). However, the appellant's statements beginning in November 2005 are entirely inconsistent with the available statements from the Veteran - which consistently report being divorced from the appellant since October 1983, not having lived with the appellant since their divorce, and openly holding himself as having a common law marriage with another woman from at least 1992 to 1997. The appellant's statements beginning in November 2005 are directly contradictory to her prior statement in October 2003 wherein she specifically denied having lived continuously with the Veteran since the date of marriage. This direct contradiction tends to impeach the overall credibility of the appellant's statements. Furthermore, the appellant's statements beginning in November 2005 do not appear to be consistent with the statements she made in May and July 1991, which tend to reflect her impression that she was divorced from the Veteran who had visited but had not been living in her home, and had abandoned the family financially since approximately 1988. Moreover, the appellant's assertion that she refused to formally remarry the Veteran due to his drug abuse reflects her own admission that she did not agree to be married with the Veteran and, thus, fails one of the criteria for establishing an informal marriage under Texas law. The Board also finds that the corroborating witness statements provided by the appellant have little probative value, and are greatly outweighed by the entire evidentiary record. As of July 1991, the Veteran referenced seeing his sons "infrequently." In June 1996 and June 1997, the Veteran denied having any contact with his family except for his sister. In September 1998, the Veteran reported having no knowledge of the appellant's address. In March 1999, the Veteran denied having any contact with his sons. And, as addressed above, the Veteran consistently reported having been divorced from the appellant, and having a common law relationship with a woman other than the appellant between 1992 and 1997. Thus, the Veteran's own statements during his lifetime are inconsistent with the allegations by the witnesses, including his sons. The Board places greater probative weight to the statements made by the Veteran during his lifetime, as they involved spontaneous assertions contemporaneous in time to the events in question which are clearly consistent with the documentary record - including his reported addresses of record since 1986. Additionally, the Veteran's sister reported at his death that the Veteran had a divorced marital status which contradicts the witness statements provided by the appellant. In June 1997, the Veteran reported that he only maintained family contact with his sister who is shown to have obtained his death certificate and processed his funeral arrangements. In addition to her statement being more consistent with the entire evidentiary record, the record reflects that the Veteran appeared to have a more intimate relationship with his sister then either the appellant or her witnesses. The Board finds that the Veteran's sister's impression of his marital relationship at the time of his death holds greater probative weight that the assertions by the appellant and the impressions of her witnesses. Thus, under Texas law (where both parties resided for the entire time between 1987 and the time of the Veteran's death), the Board finds that the Veteran and the appellant did not establish an informal marriage as the credible evidence establishes that the Veteran did not agree to become married to the appellant, did not live with the appellant as husband and wife, and did not represent himself to others as being married to the appellant. The Board also acknowledges that the provisions of 38 U.S.C.A. § 103(a) and 38 C.F.R. § 3.52 could provide an alternative basis for "marriage" when the requirements of common law marriage under Texas law have not been met. There is no allegation or evidence that the Veteran and the appellant had a child after their divorce in October 1983. Additionally, for the reasons discussed above, the Board finds that the Veteran demonstrated no intent to marry the appellant after their divorce in October 1983. As such, there is no credible factual basis to find the appellant as the Veteran's surviving spouse under 38 U.S.C.A. § 103(a) and 38 C.F.R. § 3.52. In so holding, the Board is cognizant of the representations by the appellant and her sons that the divorce in 1983, as well as any breaks in the alleged continuous cohabitation since 1988, was due to the fault of the Veteran. As the Board has found that the Veteran and the appellant divorced in October 1983 and did not enter into an agreement to be married with the appellant at any time prior to his death, the Board need not look into the issue of the reasons for divorce in 1983 or further address the "continuous cohabitation" allegations raised by the appellant. As such, the Board finds that the preponderance of the evidence weighs against a finding that the appellant can be deemed a surviving spouse of the Veteran for VA benefit purposes. The appeal, therefore, is denied. ORDER Entitlement to recognition as the Veteran's surviving spouse for the purpose of establishing eligibility for Department of Veterans Affairs benefits is denied. ____________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs