Citation Nr: 1331026 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 12-10 627 ) DATE ) ) On appeal from the Department of Veterans Affairs VA Pension Management Center in Milwaukee, Wisconsin THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for purposes of VA death benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1959 to February 1961. He died in March 2001. The appellant contends that she was in a common-law marriage with the Veteran at the time of his death. This case comes before the Board of Veterans' Appeals (Board) on appeal from June and September 2011 decisions of the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin. The appellant's July 2012 VA Form 9 included a request for a hearing. However, in November 2012, the appellant's representative indicated that the hearing request had been withdrawn. See 38 C.F.R. §§ 20.703, 20.704 (2013). In November 2012 the appellant submitted additional evidence. However, the appellant and her representative waived RO review of this evidence and therefore, Board adjudication of the current appeal may go forward without remanding the appeal for a supplemental statement of the case. See 38 C.F.R. § 20.1304(c)(2013). FINDINGS OF FACT 1. The appellant and the Veteran married in August 1966. 2. The appellant and the Veteran divorced in July 1977. 3. Common-law marriage is recognized as valid in the state of Alabama. 4. The Veteran died in Alabama in March 2001; at the time of his death he was not legally married to the appellant and a preponderance of the evidence is against a finding that a common-law marriage existed between the Veteran and the appellant. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran's surviving spouse for VA death benefits purposes are not met. 38 U.S.C.A. §§ 101(3)(31), 103, 1304, 1310, 1311, 1541 (West 2002); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.54, 3.205, 3.206 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. §§ 5103, 5103A, (West 2002); 38 C.F.R. § 3.159 (2013). The Board has considered whether VCAA is applicable to this claim and finds that because the claim at issue is limited to statutory interpretation, the notice provisions do not apply in this case. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Regardless, the appellant was provided notice in October 2010 of what information could help to substantiate her claim to be recognized as the Veteran's surviving spouse and she did in fact submit statements of friends and family to support her contentions. In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Legal Criteria The term 'surviving spouse' means a person of the opposite sex who was the spouse of a veteran at the time of the veteran's death, and 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 who has not remarried or (in cases not involving remarriage) has not since the death of the veteran lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C.A. § 101(31); 38 C.F.R. § 3.50. For VA benefits purposes, 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 C.F.R. § 3.1(j). For VA death benefits entitlement purposes, the veteran must have been married to the appellant for over one year or for any period of time if a child was born of the marriage. 38 C.F.R. § 3.54. The State of Alabama recognizes common-law marriages as valid. In Alabama, the elements of common law marriage are (1) capacity, (2) present agreement or mutual consent to enter into the marriage relationship, (3) public recognition of the existence of the marriage, and (4) cohabitation or mutual assumption openly of marital duties and obligations. See Creel v. Creel, 763 So.2d 943, 946 (Ala. 2000); Adams v. Boan, 559 So.2d 1084, 1086 (Ala. 1990). It is noted that under Alabama law, adjudicators will 'closely scrutinize claims of common law marriage and require clear and convincing proof thereof.' Gray v. Bush, 835 So.2d 192 (Ala. Civ. App. 2001). Of particular importance is the fact that Alabama 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 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 married under Alabama common law). Further, 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. 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 appellant in no way challenges the validity of her and the Veteran's July 1977 divorce. See 38 C.F.R. § 3.206. In her December 2010 Statement of Marital Relationship the appellant indicated that from May 1977 to 1999 the reason for separation was that the couple "needed a break." However, the appellant contends she and the Veteran entered into a common-law marriage from 1999 to his death in March 2001. The death certificate from March 2001 shows that the Veteran was divorced and that the appellant, named as H.B.F., was the informant of his death. The appellant was contacted by the RO to explain why she was listed using a last name that was neither her maiden name nor the Veteran's last name, but she failed to respond to this request. See e.g., April 2012 Statement of the Case. The appellant has also used her maiden name on other official Statement of Marital Relationship forms. See e.g., April 2011 statement. In August 2010 the appellant submitted a claim for VA death benefits, arguing that she was the Veteran's surviving spouse. Specifically, she contends that she lived with the Veteran from 1999 to 2001 as husband and wife. In support of her claim that she was the Veteran's surviving spouse the appellant submitted three statements dated in December 2010, one of the statements was signed by a friend, (S.A.), one by the funeral home director (K.B.), and one by the Veteran's cousin (W.P.). The appellant's friend stated that she knew the appellant had taken care of the Veteran from 1999 until he died in 2001. She shopped, cooked, and cleaned for him. The funeral director stated that the Veteran's remains were removed from the home of the appellant and that he had knowledge the Veteran had been living with the appellant for a few years. The Veteran's cousin also stated that the appellant and Veteran were husband and wife and lived together from 1965 until his death in 2001. The RO obtained VA treatment records dated from December 2000 to the time of the Veteran's death in March 2001. Significantly, these treatment reports refer to the Veteran's son as his caregiver as of December 2000. His daughter is also listed as a contact and his reverend is listed as a "significant other," but the appellant is not referenced. See December 27, 2000 VA treatment record. In a December 30, 2000 VA treatment record a VA nurse met with the Veteran at his home, where he lived alone. He reported that his children, friend, pastor, and 'ex-wife' would come visit him regularly. The nurse found that he was living in unacceptable conditions as his house was not adequately heated and he was getting weaker. He stated to the nurse that he could move in with his 'ex-wife' who would take care of him. The nurse contacted the appellant who confirmed that the Veteran could move into her home. The first reference to the appellant as the Veteran's caregiver comes is a January 9, 2001 VA treatment record where her relationship was listed as the Veteran's 'ex-wife.' The Veteran reported that he was currently living in his 'ex-wife's' house and had been since December 30, 2000. His children visited regularly and his 'ex-wife,' the appellant, was capable of care since she was a home health aide. In a March 21, 2001 VA treatment record again the appellant is listed as the Veteran's caregiver and 'ex-wife.' In a March 26, 2001VA treatment record, after the Veteran died, again the appellant is identified as the Veteran's caregiver and 'ex-wife.' Her name is reported as H.B.F., again with the 'F' being neither her maiden name nor the last name of the Veteran. The State of Alabama requires clear and convincing proof of a common-law marriage. One of the elements of a common-law marriage is 'present agreement or mutual consent to enter into the marriage relationship.' The evidence of record indicates the Veteran moved into the appellant's house in December 2000 so that she could provide care for him. Contrary to the appellant's claim and the statements of the Veteran's cousin and the funeral director that she lived with the Veteran from 1999 to 2001, the evidence of record shows that he was living by himself as of December 30, 2000 when finally a VA nurse asked him to find a caregiver and the appellant agreed to let him live with her for care giving purposes. Another element of common-law marriage in Alabama is 'public recognition of the existence of the marriage.' In multiple VA treatment records the Veteran consistently referred to the appellant as his 'ex-wife.' As recent as December 27, 2000, 3 months prior to his death, he did not refer to the appellant as his caregiver, emergency contact, or significant other. She is not referenced at all in this treatment record. On December 30, 2000 the Veteran was also examined at an address in Notasulga, Alabama where he was living, which is a different city than Tuskegee, Alabama where the appellant lives. In light of all of the above, to include (1) a valid divorce in 1977, (2) the Veteran's failure to list the appellant as his caregiver, emergency contact, or significant other in a December 27, 2000 treatment record, (3) the evidence showing that the Veteran lived by himself until December 30, 2000, (4) that the Veteran is listed as 'divorced' on his death certificate, and (5) that the appellant has provided conflicting accounts of when she and the Veteran divorced and how long they lived together prior to his death, even going so far as to not report their divorce on her initial August 2010 claim, the Board concludes that the record lacks clear and convincing evidence that the appellant and the Veteran did in fact present agreement or mutual consent to enter into marriage following their 1977 divorce, and publicly recognize the existence of the marriage, with cohabitation or mutual assumption openly of marital duties and obligations, as is required under Alabama state law to establish a common law marriage. Accordingly, the Board finds that pursuant to Alabama 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 Recognition of the appellant as the Veteran's surviving spouse for VA death benefits purposes is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs