Citation Nr: 1310734 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-13 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Recognition of the appellant as the Veteran's surviving spouse for VA benefits purposes. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active duty service from June 1972 to June 1975. He died in October 2006. The appellant claims to be the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 administrative decision issued by the VA Regional Office (RO) in Houston, Texas, which found that a common law marriage did not exist between the Veteran and the appellant and that appellant was therefore not entitled to recognition as the Veteran's surviving spouse. Although the appellant initially had requested a Travel Board hearing in her substantive appeal, she subsequently withdrew that request in September 2011. See 38 C.F.R. § 20.702(e) (2012). In September 2012, the Board remanded this case for additional development. The purposes of this remand have been met and the case is ready for appellate consideration. FINDINGS OF FACT 1. The Veteran died in October 2006 and his death certificate identified his marital status as divorced. 2. The most persuasive and credible evidence establishes that a common law marriage did not exist between the Veteran and the appellant under the laws of the state of their residence, Texas. CONCLUSION OF LAW The appellant is not entitled to recognition as the surviving spouse of the Veteran for VA purposes. 38 U.S.C.A. §§ 101(3), 103, 1102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.50-3.54, 3.159, 3.204, 3.205 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duties to notify and assist claimants. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In a letter dated in March 2007, prior to the initial adjudication of the claim, the RO advised the appellant of the information necessary to substantiate the claim, and of her and VA's respective obligations for obtaining specified different types of evidence. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). In particular, she was informed that the file contained evidence showing that the Veteran was divorced and was being paid VA benefits as a single Veteran at the time of his death. She was also informed that she needed to submit copies of documentation supporting her claim for common law marriage, i.e., joint bank account statements, tax returns, insurance policies, mortgage statements, or rental agreements listing both parties. Her responses have shown that she understands the type of evidence that is needed to support her claim. Therefore, as the appellant has not indicated any prejudice caused by a content error and no such error is apparent, the Board finds no basis for finding prejudice against her appeal of the issue adjudicated in this decision. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) regarding the rule of prejudicial error. The Board concludes that the duty to assist has also been satisfied. In this regard, the issue in this case is whether the appellant meets the requirements of a surviving spouse. She has submitted her own and lay statements in support of her claim. In addition, the Board remanded this case in September 2012. The Board noted that according to the appellant, she and the Veteran lived as man and wife for 16 years prior to his death, in her mother's home. However, the appellant had reported that she did not have any documents showing her name listed jointly with the Veteran's name on it. Moreover, the Veteran had reported a different residence (not the appellant's residence) to the VA for many years prior to his death and received VA nonservice-connected pension payment at that address. Nevertheless, the Board determined that the appellant should be given an opportunity to show that the Veteran actually resided at her address, rather than the address maintained by VA and listed on the Certificate of Death. Furthermore, the RO was to make arrangements to obtain the Veteran's complete treatment records from Memorial Hermann Baptist Hospital, to include the Veteran's terminal hospitalization report, dated in October 2006. In an October 2012 letter to the appellant, the RO requested that she submit documentation that the Veteran resided at her address, such as on bills, bank accounts, his tax return, an insurance policy, or any other source. In addition, they provided authorization forms so that she could authorize the release of his treatment records from the Memorial Hermann Baptist Hospital. In the appellant's response, she stated that she was not able to get the Memorial Hermann Baptist Hospital to release any of the Veteran's records. However, she submitted records from the City of Beaumont Emergency Medical Services (EMS), which provided transportation of the Veteran to the hospital prior to his death. She also submitted numerous invoices from various companies, such as LL Bean, which showed that the Veteran had packages sent to her residence. In light of the above, the Board finds that the RO has complied with the instructions from the Board's September 2012 remand. Stegall v. West, 11 Vet. App. 268 (1998). All necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). II. Applicable Law and Regulations A surviving spouse may qualify for pension, compensation or dependency and dependency and indemnity compensation (DIC), if the marriage to the Veteran occurred before or during his service, or after his service if certain requirements are met. 38 U.S.C.A. § 1541; 38 C.F.R. § 3.54. Under the regulations, a "surviving spouse" is defined, in part, 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. 38 C.F.R. § 3.50. VA defines a "marriage" as a marriage valid under the law of the place where the parties resided at the time of marriage or the laws 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). In jurisdictions where marriages other than by ceremony are recognized, marriage is 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 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. Marriage may also be established by any other secondary evidence which reasonably supports a belief by the adjudicating activity that a valid marriage actually occurred. 38 C.F.R. § 3.205(a). In the absence of conflicting information, proof of marriage which meets the requirements of paragraph (a) of this section together with the claimant's certified statement concerning the date, place and circumstances of dissolution of any prior marriage may be accepted as establishing a valid marriage, provided that such facts, if they were to be corroborated by record evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205(b). The state of Texas, where the Veteran and the appellant resided, recognizes common law marriages. The elements of a common law, or informal, marriage are (1) a man and woman agreed to be married; (2) after the agreement they lived together in Texas as husband and wife; and (3) they represented to others in the state that they were married. See Tex. Fam. Code Ann. § 2.401. The proponent of such a marriage may establish these elements by either direct or circumstantial evidence. See Russell v. Russell, 865 S.W.2d 929, 932 (Tex. 1993). III. Factual Background In a VA Form 21-526, Veteran's Application for Compensation or Pension, dated in July 2000, the Veteran reported his marital status as "divorced." He noted that he had two children and that they lived with his ex-wife. The Veteran also provided his address in Beaumont, Texas. In a February 2001 rating action, the RO granted the Veteran's claim for nonservice-connected pension benefits. VA subsequently sent the Veteran his benefits checks to the Beaumont address that he had originally provided in his July 2000 VA application. In a VA Form 21-686c, Declaration of Status of Dependents, received in April 2001, the Veteran reported his marital status as "divorced." He noted that he had married J.M.B. in July 1985 and that they had divorced in October 1994. According to the Veteran, he had three children and they lived with their mother. In a VA Form 21-0517, Improved Pension Eligibility Verification Report (Veteran With Children), dated in January 2003, the Veteran reported his marital status as "not married." In November 2006, the Veteran's sister, Ms. N.B., notified the VA that the Veteran had died. She submitted the Veteran's Death Certificate and his last VA benefits check. In the Certificate of Death, it was noted that the Veteran died in October 2006 while he was at the Memorial Hermann Baptist Hospital. The informant was his sister. The Veteran's marital status at the time of death was listed as "divorced" and his address was listed as the same address that he had provided in his July 2000 VA application. An invoice from the Calvary Mortuary, dated in November 2006, shows that the Veteran's sister, Ms. N.B., paid for his funeral. In December 2006, the appellant submitted VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation, if Applicable). In the form, she stated that she had married the Veteran in 1995 and that they remained married until his death in October 2006. She provided her address in Beaumont, Texas and it was a different address from the one that the Veteran had provided to VA while he was alive. In an attached VA Form 21-4170, Statement of Marital Relationship, the appellant reported that she had lived with the Veteran as husband and wife beginning in January 1992 and ending with his death in October 2006. She noted that she and the Veteran had each had a prior marriage and she submitted copies of their respective divorce decrees. In the Veteran's divorce decree, it was noted that he had been married to J.M.B. and they were granted a divorce, effective from October 1994. According to the appellant's divorce decree, the appellant had been married to F.P.A. and they were granted a divorce, effective from January 1993. In December 2006, the appellant submitted four VA Forms 21-4171 (Supporting Statement Regarding Marriage), from her ex-husband and neighbors, in support of her claim. In all of the forms, her ex-husband and friends verified that they had heard the Veteran and the appellant refer to each other as husband and wife and that they considered them as husband and wife. In one form that was completed by a Mr. H., he stated that he had known the Veteran for 50 years and the appellant for 20 years. According to Mr. H., the Veteran stated that the appellant was the "love of his life" and his "lovely wife." In another form that was completed by a Ms. H., she stated that she had known the Veteran for 5 years and the appellant for 25 years. According to Ms. H., when the Veteran came to her house, he would indicate that he had to wash "his wife's car" or that his wife "snored." In March 2007, a claim for burial benefits was filed by the Veteran's sister. In a VA Form 21-4138, Statement in Support of Claim, dated in April 2007, the appellant stated that she did not have any documents showing her name listed jointly with the Veteran's name on it. In a VA Form 21-4171, received in April 2007, the Veteran's sister, Ms. N.B., indicated that the she did not consider the Veteran and the appellant to be husband and wife. In response to the question of whether the Veteran and the appellant were known as husband as wife, Ms. N.B. responded "no." She further reported that she had never heard the Veteran or the appellant refer to each other as husband and wife. In a VA Form 21-4138, dated in October 2008, the appellant stated that she lived with the Veteran for 16 years. She noted that they had to reside with her mother during that time because her mother was ill and they needed to take care of her. According to the appellant, her relationship with the Veteran was recognized as a common law marriage in the state of Texas. She submitted a statement from a nurse, Ms. P.N., in support of her claim. In the statement, Ms. N. indicated that she ran the agency that managed the care for the appellant's mother for several years before her death. In the course of their care, they noted that the Veteran resided at the same address as the appellant as her common law spouse. The Veteran took care of the appellant's mother in her absence. He was present during most of their home visits and cooperated with the agency in the care of the appellant's mother. In a VA Form 21-4138, dated in October 2012, the appellant stated that she and the Veteran decided not to get married in the "traditional way." She reported that they wanted to get married at the courthouse but that due to her mother's illness and the Veteran's bad health, they never did so. However, she maintained that they held themselves out as a married couple to their friends and family. The appellant noted that the Veteran's family did not approve of their living situation due to religious reasons. According to the appellant, when the Veteran collapsed in October 2006, she called 911 to get help. In support of her claim, she submitted records from the City of Beaumont EMS which show that in October 2006, the Veteran was picked up at the appellant's residence when he collapsed and was taken to the Memorial Hermann Baptist Hospital. In the EMS billing form, the Veteran's address was listed as the address that he had given to VA for many years; accordingly, a different address from the appellant's address. The appellant also submitted numerous invoices from various companies, such as LL Bean, which showed that the Veteran had packages sent to her residence. IV. Analysis The appellant has not alleged that she ever married the Veteran in an official ceremony. See 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). Rather, she maintains that she was the common law wife of the Veteran prior to his death and that they cohabitated together at her mother's house for many years. The Board notes that the Veteran and the appellant lived in Texas, which is a state that recognizes common law marriage. The elements of a common law marriage in Texas are (1) a man and woman agreed to be married; (2) after the agreement they lived together in Texas as husband and wife; and (3) they represented to others in the state that they were married. See Tex. Fam. Code Ann. § 2.401. Upon a review of the evidence of record, the Board finds that the weight of the evidence is against the finding that the Veteran and the appellant cohabitated. From the time the Veteran filed his claim for nonservice-connected pension benefits in July 2000, he only provided VA one address, and that address was different from the appellant's address. The address that the Veteran provided to VA was the address where his VA nonservice-connected pension payments were sent to. In addition, that address was listed as his home address on his death certificate. Moreover, even though the City of Beaumont EMS records show that when the Veteran collapsed in October 2006, he was at the appellant's house, the actual invoice reflects that the Veteran's address for billing purposes was the address that he had provided to the VA since July 2000, which was different from the appellant's home address. For argument's sake, if the Veteran had been cohabitating with the appellant, it is reasonable to assume that he would have his VA benefits checks sent to her home address. However, the Veteran did not have his checks sent to the appellant's address; rather, he had them sent to the address that he provided to VA since July 2000. While the appellant has submitted invoices from various companies which showed that the Veteran had packages sent to her residence, such evidence does not prove that the Veteran was cohabitating with the appellant, especially when the evidence clearly shows that he maintained a separate address. The same goes for the October 2008 statement from Ms. P.N., the nurse whose agency took care of the appellant's mother and who reported that the Veteran was present during most of the home visits. The fact that the Veteran was present for home visits at the appellant's house does not prove that he and the appellant cohabitated, especially since he had a separate residence. Therefore, the Board finds that the weight of the evidence is against the finding that the Veteran and the appellant cohabitated. In addition to the evidence of record showing that there was no cohabitation, the Board also finds that the Veteran's statements during his lifetime provide evidence against a finding that he had entered into a marriage with the appellant or that he had represented himself as the husband of the appellant. In correspondence with the VA, he continually reported his marital status as "divorced." In addition, in a VA Form 21-0517, dated in January 2003, just three years prior to his death, he reported his marital status as "not married." In addition, the appellant's statements regarding the length of her relationship with the Veteran have varied. In a December VA Form 21-534, she stated that she had been "married" to the Veteran since 1995. However, in an attached VA Form 21-4170, she noted that she started living with the Veteran as husband and wife in January 1992. In this regard, according to the divorce decrees of record, the appellant was not divorced from her first husband until January 1993, and the Veteran was not divorced from his first wife until October 1994. Thus, she could not have been in a common law marriage with the Veteran until they were both divorced, which was not until October 1994. The Board also notes that in an October 2008 statement from the appellant, she indicated that she had lived with the Veteran for 16 years. Given that the Veteran died in October 2006, cohabitation would have begun in 1990, while both the Veteran and the appellant were still married to other people. Although statements from the appellant's ex-husband and friends suggest that the Veteran and the appellant did hold themselves out as husband and wife, greater probative weight is being afforded to the Veteran's contrary statements. See generally, Curry v. Brown, 7 Vet. App. 59 (1994)(one is usually more truthful when providing information for the purposes of medical diagnosis and treatment than when one is providing information for the purpose of receiving monetary compensation). The Board also notes that the Veteran's own sister denied the appellant's allegation that she and the Veteran held themselves out as husband and wife. In this regard, it was the Veteran's sister who notified the VA of his death and who also returned his last VA benefits check. She also paid for his funeral. In light of the above, the Board finds that the appellant has not met the criteria for a common law marriage in Texas. The most persuasive and credible evidence of record reflects that no common law marriage existed between the Veteran and the appellant at the time of his death. Therefore, the Board concludes that the preponderance of the evidence is against recognition of the appellant as the Veteran's surviving spouse for VA purposes. Given that the Board has found that a common law marriage that would be recognized by the State of Texas or "deemed valid" pursuant to VA law and regulations did not exist, it must conclude that the appellant is not a "surviving spouse" for purposes of establishing eligibility for VA benefits. While the appellant may have been in a significant relationship with the Veteran, she cannot be considered a "surviving spouse" for VA purposes. As such, her contentions simply do not provide a basis on which her claim may be granted. Accordingly, recognition of the appellant as the Veteran's surviving spouse for VA purposes is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to recognition of the appellant as the Veteran's surviving spouse for VA benefits purposes is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs