Citation Nr: 1330902 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 09-07 184A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to recognition of the appellant as the surviving spouse of the Veteran for the purpose of establishing entitlement to Department of Veterans Affairs (VA) death benefits, including dependency and indemnity compensation (DIC) benefits, death pension, and accrued benefits. ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served in the United States Army from May 1941 to December 1945 and from March 1948 to May 1971. He died in August 2007. At the time of his death, he was in receipt of VA benefits. The appellant is claiming entitlement to death benefits as the Veteran's alleged surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 decision of the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama. The record reflects the appellant requested a hearing before a Veterans Law Judge in conjunction with her appeal, and that such a hearing was scheduled for June 2012. However, she failed to report for this hearing without a showing of good cause. Therefore, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2012). In August 2012, the Board remanded the issue for additional development, and now the case has been returned to the Board for appellate adjudication. FINDING OF FACT The appellant and Veteran were not married, by common law marriage or otherwise, prior to his death. CONCLUSION OF LAW There is no legal basis to recognize the appellant as a surviving spouse for VA purposes. 38 U.S.C.A. §§ 101(3), 103 (West 2002); 38 C.F.R. §§ 3.1(j), 3.5, 3.50, 3.53, 3.54 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Here, the duty to notify the appellant of how to establish entitlement to benefits as a surviving spouse was satisfied by November 2007 and August 2012 letters. Moreover, the record demonstrates that the appellant had actual knowledge of what was required to establish a common law marriage under Alabama law as evidenced by her submission of evidence and arguments during the adjudication of her claim below. See Mlechick v. Mansfield, 503 F.3d 1340, 1345 (Fed. Cir. 2007) (holding that lack of prejudice from inadequate notice can be demonstrated by actual knowledge of what was necessary to substantiate a claim). As to VA's duty to assist, the Board finds that 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). As an initial matter, all relevant evidence necessary for an equitable resolution has been identified and obtained to the extent possible. In addition to the Veteran's service treatment records and post-service treatment records, VA obtained Social Security Administration (SSA) records and VA administrative records. The appellant submitted statements and other evidence, such as retirement information, friend statements, and probate court records. The Board is also satisfied that there has been substantial compliance with the Board's prior remand. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (indicating that a Court or Board remand confers upon the appellant the right to substantial, but not strict, compliance with that order). Pursuant to the August 2012 remand, the appellant was provided with a letter advising her of alternate evidence and documents that would support her claim. However, she did not respond or submit any of the identified information. It is well established that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). Additionally, as requested, letters were also sent to the Veteran's sons, and VA obtained administrative records and records from SSA relevant to the appellate issue. Thus, there is no Stegall violation in this case, and the Board may proceed to adjudicate the claim at this time based on the evidence of record. II. Entitlement to Recognition as a Surviving Spouse "Spouse" is defined by regulation as "a person of the opposite sex whose marriage to the veteran meets the requirements of [38 C.F.R.] § 3.1(j)" under 38 C.F.R. § 3.50(a). 38 C.F.R. § 3.1(j) further defines "marriage" as "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 rights to benefits accrued." Id. A "surviving spouse" is defined as a member of the opposite sex who was the spouse of the veteran at the time of the veteran's death and who (1) lived with the veteran continuously since the time of the parties' marriage to the date of the veteran's death, unless there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse (there also reasons accepted under 38 C.F.R. § 3.53 (governing continuous cohabitation)), and (2) except as provided in 38 C.F.R. § 3.55 (pertaining to certain terminations of subsequent marriages), has not remarried and has not held him or herself out to the public as the spouse of a member of the opposite sex with whom he or she was then cohabiting. 38 C.F.R. § 3.50(b). The Board acknowledges that on June 26, 2013, the U.S. Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional; however, that provision does not impact the merits of this case. The appellant contends that she and the Veteran entered into a common law marriage in the State of Alabama in September 1993. She asserts that they lived together from September 1993 to January 2004. She further claims that she separated from, but did not desert, the Veteran because of physical and verbal abuse. She also stated that the separation was due to her poor health and that she moved so that she could live near friends and relatives who could assist her. Because the Veteran and the appellant were residents of Alabama during identified time period, Alabama law governs the determination of whether they entered into a common law marriage. 38 U.S.C.A. § 103(c) ("In determining whether or not a person is or was the spouse of a veteran, their marriage shall be proven as valid for the purposes of all laws administered by the Secretary according to the law of the place where the parties resided at the time of the marriage or the law of the place where the right to benefits accrued."). Under Alabama law, a party attempting to demonstrate a common law marriage has to establish four elements: "(1) capacity (both spouses must be at least 14 and mentally competent), (2) a present agreement or mutual consent to enter into the marriage relationship, (3) a public recognition of the existence of the marriage, and (4) cohabitation or mutual assumption openly of marital duties and obligations." Creel v. Creel, 763 So.2d 943, 946 (Ala. 2000); Adams v. Boan, 559 So.2d 1084, 1086 (Ala. 1990)). Additionally, under Alabama law, "clear and convincing proof" is required to establish a common law marriage. Goodman v. McMillan, 258 Ala. 125, 61 So.2d 55, 59 (1952)); see also 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 a couple were common law married under Alabama common law). Here, the Board finds that the appellant and Veteran were not married, by common law marriage or otherwise, at any time prior to his death. A review of the claims folder indicates that in an August 1971 application for VA benefits, the Veteran reported marrying P.L.D. and that they divorced in March 1947 (a copy of the divorce decree is of record). The record also shows that the Veteran reported marrying E.W. in 1948, although the appellant asserts that this marriage ended in 1980. The Board observes that although the appellant has submitted evidence showing that she entered into a common law marriage with the Veteran, this evidence is found to lack probative value. Simply put, for the reasons explained below, this evidence is not credible given internal inconsistencies, bias, and/or inconsistencies with other evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statement, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Most notably, the appellant's own assertions are internally inconsistent. Of particular significance is her December 2004 application when she applied for benefits from SSA. In her application for disability insurance benefits, she clearly stated "I have never married." Moreover, her statements regarding the inception of the alleged common law marriage are not reliable. In her August 2007 application to acquire SSA benefits based on the Veteran's death, she stated that the deceased Veteran was "last married to [her] on June 1, 1993, in AL." However, on her contemporaneous August 2007 application for VA benefits related to the Veteran's death, she instead stated that they were married on September 5, 1993. In addition to being internally inconsistent, her assertions are also in conflict with other evidence of record. The Veteran reported in a November 2000 VA treatment record that he lived alone at home and that he did not have supportive family/friends. This directly contradicts her assertion that they were married or even living together prior to 2004. Further, VA Forms 21-8947 from 2002 to 2006 all show that the space in which the name of the Veteran's spouse would be entered was left blank. It is also important to note that administrative VA records indicate that the Veteran's emergency contact was his son, M.K.; that his next of kin included M.K. and his brother C.K.; and that the Veteran's marital status was "divorced." Finally, the Veteran's Certificate of Death lists the Veteran's marital status as "widowed." This information was provided by the Veteran's son, M.K., at the time in which the Certificate was completed. In support of her claim, the appellant also submitted probate court records and statements from her friends who stated that the Veteran and the appellant held themselves out as husband and wife and that they lived together from September 1993 to January 2004. As to the statements the appellant submitted to VA from her friends, each related that they had known the appellant since the 1970s. Because they were submitted by the appellant at the same time as her VA claim for benefits and were made under circumstances involving the appellant's potential eligibility for monetary gain, the statements suggest possible bias. See Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006) (the Board must "determin[e] whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."). With regard to the probate court records, the appellant's December 2007 petition for letters of administration were based on her allegations of a common law marriage, but the Board finds these underlying statements lack credibility. Further, it is important to note that the above evidence submitted by the appellant was generated after the Veteran's death. The Board instead finds credible and unbiased, and therefore most probative, the evidence generated prior to his death. Therefore, the Veteran's November 2000 statements to VA of living alone at home with without supportive family, as well as the appellant's own statement made to SSA in December 2004 that she was "never married," weigh heavily against a finding that the appellant and Veteran held themselves out to the public as husband and wife or that they cohabited together from September 1993 to January 2004. The probative evidence of record fails to show that both the appellant and the Veteran had an agreement to enter into a marriage relationship or that there was mutual consent between the two of them to enter into a marriage relationship. This is required in order to establish a common law marriage under Alabama law. For the purposes of this claim, VA looks to Alabama law to determine the existence of a common law marriage The appellant has not presented any formal documents showing that both she and the Veteran acknowledged being married to one another. All formal records such as those from the SSA, VA and the death certificate fails to show a marriage between the appellant and the Veteran. In fact, these reports indicates that such a relationship did not exist. Given the record as a whole, the Board finds that the weight of the evidence indicates that there was no common law marriage between the Veteran and the appellant at any time prior to his death. Thus, there is no legal basis to recognize the appellant as a surviving spouse for VA purposes, and her claim is denied. ORDER Entitlement to recognition as a surviving spouse for purposes of receiving VA death benefits is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs