Citation Nr: 1309704 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 10-24 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to recognition as the Veteran's qualifying surviving spouse for the purpose of eligibility to DIC and death pension benefits. REPRESENTATION Appellant represented by: Attorney James H. French WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran had active service from April 1966 to April 1972. He died in June 2008. The appellant alleges that she is his surviving spouse for the purpose of eligibility to DIC and death pension benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board has characterized the appellate issue to be entitlement to recognition as the Veteran's qualifying surviving spouse for the purpose of eligibility to DIC and death pension benefits, based on the RO's denial of entitlement to both pension and DIC benefits on the basis that the appellant failed to meet the criteria for a qualifying spouse. The appellant appeared before the undersigned Veterans Law Judge in a Travel Board hearing in Cleveland in May 2012 to present testimony on the issue on appeal. The hearing transcript has been associated with the claims file. FINDING OF FACT The credible evidence supports a finding that the appellant and the Veteran had a common law marriage more than one year prior to the Veteran's death and as early as 1996; that the two parties continuously cohabitated from 1996, up to and including the formalization of their marriage in February 2008, and continuing until his death in June 2008; there is no other legal surviving spouse entitled to benefits. CONCLUSION OF LAW The common law marriage between the Veteran and the appellant is deemed valid, establishing the appellant as his surviving spouse for the purpose of eligibility to DIC and death pension benefits. 38 U.S.C.A. §§ 101, 103, 5107(b) 1304, 1310, 1311, 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.52, 3.54, 3.205 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA law provides for dependency and indemnity compensation to a Veteran's surviving spouse, child, or parent because of a service-connected death occurring after December 31, 1956. 38 U.S.C.A. § 101(14) (West 2002 & Supp. 2012); 38 C.F.R. § 3.5 (2012). Death pension is payable to a Veteran's surviving spouse or child for a nonservice connected death, if certain criteria are met. 38 C.F.R. § 3.3 (2012). In pertinent part, 38 C.F.R. § 3.54 defines the marriage dates permitting eligibility for Dependency and Indemnity Compensation and Survivor's Pension as follows: Death pension 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, or (3) prior to the applicable delimiting dates in pertinent part for Vietnam era service-May 8, 1985. 38 C.F.R. § 3.54(a) (2012). Dependency and indemnity compensation may be paid to a surviving spouse of a Veteran who died on or after January 1, 1957, and who was married to the Veteran (1) before the expiration of 15 years after the termination of the period of service in which the injury of disease causing death was incurred or aggravated, (2) for one year or more prior to the Veteran's death, (3) for any period of time if a child was born of the marriage or was born to them before the marriage. 38 C.F.R. § 3.54 (c) (2012). The term "spouse" means a person of the opposite sex whose marriage to the Veteran meets the requirements of 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j), which means a marriage valid under the 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. See 38 C.F.R. § 3.50(a) (2012). The legal existence of a marriage for VA purposes is governed by "the 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 rights to benefits accrued." 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j); Badua v. Brown, 5 Vet. App. 472, 474 (1993). Where an attempted marriage is invalid by reason of legal impediment, VA regulations allow for certain attempted marriages to be nevertheless "deemed valid" if specific legal requirements are met. In Colon v. Brown, 9 Vet. App. 104, 107 (1996), the United States Court of Appeals for Veterans Claims determined that in cases where 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. 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 other claimant has been found to be entitled to gratuitous VA death benefits. 38 U.S.C.A. § 103(a); 38 C.F.R. § 3.52. In jurisdictions where marriages other than by ceremony are recognized, marriage will be established by 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 married, and whether they were generally accepted as such in the communities in which they lived. See 38 C.F.R. § 3.205(a). If the provisions of 38 C.F.R. § 3.205(a) are satisfied, as well as those of 38 C.F.R. § 3.52, the claimant's signed statement that she had no knowledge of an impediment to a marriage to the Veteran will be accepted as proof of the fact, in the absence of information to the contrary. 38 C.F.R. § 3.205(c). In the state of Ohio, common law marriage was abolished effective October 10, 1991. See Ohio Revised Code (O.R.C.) 3105.12 (B). OHC Title (31) XXXI Domestic Relations-Children-Chapter 3105: Divorce, Alimony, Annulment, Dissolution of Marriage. However Ohio will generally uphold the marriage unless public policy is violated. In the case of Dodrill v. Dodrill, N.E.2d, 2004 WL 938476 (Ohio App. 4 Dist.), 2004 -Ohio- 2225, the Fourth District Court of Appeals upheld as valid a marriage performed by an unlicensed minister, stating that Ohio public policy favors sustaining marriages that are not "incestuous, polygamous, shocking to good morals, unalterably opposed to a well defined public policy, or prohibited." (citing Mazzolini v. Mazzolini (1958)), 168 Ohio St. 357, 358. In this matter, the RO has determined that the appellant is ineligible for DIC benefits, finding that she had been married to the Veteran less than 1 year prior to his death. The appellant contends that she was in a common law relationship with the Veteran for nearly 15 years prior to the Veteran's death. The RO has determined that because she and the Veteran did not enter a common law relationship prior to October 10, 1991, when Ohio no longer formally recognized common law marriage, she fails to qualify for DIC status pursuant to 38 C.F.R. § 3.54. The Veteran died in June 2008, less than a year after he and the appellant formally married in February 2008. He was previously married twice, with the first marriage shown to have ended in divorce in December 1975, and the second marriage having ended with the death of his second wife in October 1995. The appellant is not shown to have had any previous marriages. The appellant submitted a VA Form 21-4170, Statement of Marital Relationship in April 2010, on which she delineated the periods of cohabitation with the Veteran, attesting that she and the Veteran had continuously lived together as husband and wife from July 1996 until his death (June 2008). She indicated that she used her maiden name during the time they cohabitated, but sometimes sued his last name. She testified at her May 2012 Travel Board hearing that she was living with the Veteran at the time he was diagnosed with cancer in 2004, and pointed to a medical document from 2006 which listed the Veteran as having a wife. She confirmed that they purchased a house together shared bank accounts, car titles and insurance years prior to his death. She said that neighbors assumed that they were married. She testified that she formally married him in February 2008 shortly before his death, to fulfill his wishes that they be formally married. She testified that she was unaware that the State of Ohio does not recognize common law marriages. She also submitted copies of several documents that included both the name of the appellant and the Veteran, including a July 1996 document indicating that she and the Veteran purchased a house together; an April 2005 document showing they were jointly on a mortgage, and various banking, tax and insurance documents showing their names jointly for more than a year prior to his death. The appellant submitted two sworn statements in March 2010 attesting to the relationship between the appellant and the Veteran. One statement came from the appellant's childhood friend who regularly spoke with and visited the appellant and the Veteran. She acknowledged that the Veteran and his wife lived together continuously since they bought their home together in 1996. She indicated that they held themselves out as husband and wife since buying the house together. The second statement from another friend who knew the appellant for approximately 16 years and the Veteran for approximately 14 years, acknowledged that the Veteran and the appellant were generally known as husband and wife and she considered them as such. She indicated that they had joint bank accounts, car ownership and insurance coverage. The record includes medical documents addressing cancer treatment for the Veteran from 2004 to 2008. Some of the documents including from February 2004 and March 2004 show that the treating doctor spoke with the Veteran and his "significant other" about his cancer diagnosis. Other cancer treatment notes from May 2004 to July 2004, September 2007, and from March 2008 to April 2008 show the appellant listed as the Veteran's "friend." However a November 2006 letter from a Dr. S.Z, to another doctor describes a discussion about the Veteran's diagnosis with him and his wife. In light of the evidence, and in resolving all doubt in her favor, the appellant is entitled to recognition as the Veteran's qualifying surviving spouse for purposes of entitlement to DIC and death pension benefits under 38 C.F.R. § 3.54 (2012). The Veteran and the appellant lived together as husband and wife for several years prior to their formal marriage and the Veteran's death in 2008. They shared title to a house, mortgage, tax, and bank accounts. They carried insurance policies on each other. They were known among their community as husband and wife. Affidavits from individuals who had regular contact with both the appellant and Veteran indicate the couple presented themselves and married. Their marriage, while not formally recognized, was also not shown to have been void against public policy in the state of Ohio. To the extent that there may have been a legal impediment to the Veteran and appellant's marriage the Board finds that the impediment was not known by the appellant. See 38 C.F.R. § 3.52. Additionally, there is no impediment to the marriage as the claims folder indicates that the Veteran had ended any previous marriages with divorce from his first wife in 1975 and the death of his second wife in 1995. The appellant has stated she was unaware of any reason why she and the Veteran could not be considered married more than 1 year prior to his death. She stated this under oath during her testimony and there no evidence to the contrary. As she has met the requirements of 38 C.F.R. § 205(a) and 38 C.F.R. § 3.52, she is entitled to be recognized as the Veteran's qualifying spouse for the purposes of basic eligibility to DIC and death pension benefits. 38 C.F.R. § 3.205(c). As a final matter, the Board notes that the agency of original jurisdiction has a duty to notify and assist the veteran under 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159. As discussed above, the Board finds that a grant of the appeal is warranted; therefore, a full discussion of whether VA met these duties is not needed. (CONTINUED ON NEXT PAGE) ORDER Entitlement to recognition of the appellant as the Veteran's qualifying surviving spouse for the purpose of eligibility to DIC and death pension benefits is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs