Citation Nr: 1335453 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 12-32 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida 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. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran had active service from July 1963 to June 1969; he died in February 2010. At the time of his death, he was in receipt of VA benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 decision of a VA Regional Office, which determined that the appellant was not entitled to recognition as the Veteran's surviving spouse for purposes of receiving VA death benefits. In a September 2012 submission, the appellant withdrew her claim for a personal hearing. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran and the appellant participated in a wedding ceremony on November [redacted], 2002 in the waters off of Miami, Florida, but did not obtain a marriage license and were not issued a Certificate of Marriage by the state of Florida. 2. The appellant did not establish a common law marriage to the Veteran prior to his death. 3. The appellant and Veteran did not believe they had entered into a legally valid marriage at any time prior to December [redacted], 2009. The Veteran and the appellant were married in St. Augustine, Florida, on December [redacted], 2009, and were issued a Certificate of Marriage by the State of Florida. 4. The Veteran died on February [redacted], 2010, approximately 10 months before the couple's one year marriage anniversary. CONCLUSION OF LAW The criteria for entitlement to recognition as the surviving spouse of the Veteran for purposes of VA death benefits have not been met. 38 U.S.C.A. §§ 103, 5124 (West 2002); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53, 3.54, 3.204, 3.205 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA) and subsequent legislation, VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In letters dated in April 2010 and October 2010, the RO provided the appellant with an explanation of the type of evidence necessary to substantiate her claim, as well as an explanation of what evidence was to be provided by her and what evidence the VA would attempt to obtain on her behalf. The initial notice letter was provided before the adjudication of her claim in July 2010. VA has complied with the applicable notice requirements of VCAA and has no outstanding duty to inform the appellant that any additional information or evidence is needed. Therefore, the Board may decide the appeal without a remand for further notification. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. 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 her in the development of her claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Factual Background The death certificate shows the Veteran died in February 2010. The informant was the appellant. The appellant provided a copy of a Certificate of Marriage from the state of Florida which reflects that she married the Veteran in December 2009. In her March 2010 claim for VA benefits the appellant stated that she had married the Veteran on December [redacted], 2009. She indicated that the Veteran was her third husband, and she had divorced her second husband on October [redacted], 2000. In an April 2010 statement the appellant reported that a Certificate of Marriage from the 2002 ceremony and never issued. She also stated that she lived with the Veteran from January 2000 until his death. They filed taxes together as joint custodians of a corporation and maintained a joint bank account. Along with her statement, the appellant submitted the 'Last Will and Testament' of the Veteran executed in August 2005 wherein the Veteran refers to the appellant as his "companion." Likewise, in the appellant's 'Last Will and Testament' executed in August 2005 she referred to the Veteran as her "companion." In an October 2010 'Statement of Marital Relationship' (VA Form 21-4170), the appellant stated that she and the Veteran began living as husband and wife on February [redacted], 2000 in the state of Florida, and were in a committed, monogamous relationship. Two witnesses who had known both the Veteran and the appellant for many years attested to their commitment and cohabitation. In a statement from the appellant received in October 2012, she explained that she and the Veteran "lived as man and wife" despite using the term 'companion' in their respective wills. They were in a committed relationship, worked together, and served their community. Prior to his death, the Veteran submitted a claim for VA compensation completed and signed by him on December [redacted], 2009, and received by VA on December 18, 2009. He listed the appellant as his nearest relative on the VA Form 21-526 and described the relationship as "friends." With regard to his marital status, he checked the box for 'Never Married.' Analysis A surviving spouse may qualify for pension, compensation, or dependency and indemnity compensation under the appropriate circumstances. 38 C.F.R. § 3.54. However, the surviving spouse must be married to the veteran for a period of one year or more prior to the veteran's death. See 38 C.F.R. § 3.54(a)(1), (b)(2), and (c)(1)(ii). As detailed, the appellant entered into a legal marriage with the Veteran in December 2009; however, was not married to the Veteran for a year prior to his death in February 2010. Thus, the marriage between the appellant and the Veteran does not on its face meet the basic eligibility requirements for entitlement to VA benefits as the Veteran's surviving spouse. As detailed, the appellant reports that a wedding ceremony was performed in November 2002; however, she has not submitted a Certificate of Marriage and admits that a certificate was never issued. She has also asserted that she and the Veteran held themselves out as husband and wife in a committed and monogamous relationship for many years prior to entering into a legal marriage in December 2009, thus essentially asserting that she and the Veteran entered into a common law marriage. 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). According to Black's Law Dictionary, a "common law marriage" is defined as a marriage not solemnized in the ordinary way (i.e. non-ceremonial) but created by an agreement to marry, followed by cohabitation, a consummated agreement to marry, marriage contract, per verba de praesenti, followed by cohabitation. Such a marriage requires a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant fulfillment of necessary relationship of man and wife, and an assumption of marital duties and obligations. Id. at 144-45 (5th abridged ed. 1983). VA will accept, for the purpose of determining entitlement to benefits under laws administered by VA, the statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent, provided that the statement contains: the date (month and year) and place of the event; the full name and relationship of the other person to the claimant. 38 U.S.C.A. § 5124(a), (b); 38 C.F.R. § 3.204(a)(1). VA shall require corroborating evidence to verify a marriage where: the claimant does not reside within a state; the claimant's statement on its face raises a question of its validity; the claimant's statement conflicts with other evidence of record; or, there is a reasonable indication, in the claimant's statement or otherwise, of fraud or misrepresentation of the relationship in question. 38 U.S.C.A. § 5124(c); 38 C.F.R. § 3.204(a)(2). Failure to furnish the higher class of evidence, however, does not preclude the acceptance of a lower class if the evidence furnished is sufficient to prove the point involved. 38 C.F.R. § 3.204(b). Marriage is established by one of the following types of evidence (in the order of preference): 1) Copy or abstract of the public record of marriage, or a copy of the church record of marriage, containing sufficient data to identify the parties, the date and place of marriage, and the number of prior marriages if shown on the official record; 2) Official report from service department as to marriage which occurred while the service member was in service; 3) The affidavit of the clergyman or magistrate who officiated; 4) The original certificate of marriage, if the VA is satisfied that it is genuine and free from alteration; 5) The affidavits or certified statements of two or more eyewitnesses to the ceremony; 6) In jurisdictions where marriages other than by ceremony are recognized 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; or, 7) 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 38 C.F.R. § 3.205(a) 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. Where necessary to a determination because of conflicting information or protest by a party having an interest therein, proof of termination of a prior marriage will be shown by proof of death, or a certified copy or a certified abstract of final decree of divorce or annulment specifically reciting the effects of the decree. 38 C.F.R. § 3.206(b). Whenever, in the consideration of any claim filed by a person as the widow or widower of a veteran for gratuitous death benefits under laws administered by the Secretary, it is established by evidence satisfactory to the Secretary that such person, without knowledge of any legal impediment, entered into a marriage with such veteran which, but for a legal impediment, would have been valid, and thereafter cohabited with the veteran for one year or more immediately before the veteran's death, or for any period of time if a child was born of the purported marriage or was born to them before such marriage, the purported marriage shall be deemed to be a valid marriage. 38 U.S.C.A. § 103(a). Section 103(a) expressly delegates to VA the authority to determine the evidence necessary to establish a "deemed valid" marriage. Burden v. Shinseki, 727 F.3d 1161 (Fed. Cir. 2013). The determination of a claimant's knowledge of a legal impediment is viewed in terms of "what the appellant's state of mind was at the time that the invalid marriage was contracted." Dedicatoria v. Brown, 8 Vet. App. 441, 444 (1995). When a surviving spouse submits proof of marriage and meets the requirements for a deemed valid marriage, VA will accept the surviving spouse's statement that he or she had no knowledge of an impediment to marriage, absent information to the contrary. 38 C.F.R. § 3.205(c) (2013). While the appellant asserts that a wedding ceremony was held in November 2002 and the ship's reported captain attested to performing a "casual" ceremony, a claim for compensation completed by the Veteran on December [redacted], 2009, 7 days before he legally married the appellant, he did not report the appellant as his "spouse" and reported that he had "never married." Under Florida law, a valid marriage requires a marriage license and certificate. Fla. Stat. § 741.01-42 (2002); Hall v. Maal, 32 So.3d 682, 684 (Fla. App. 2010). The appellant admits that a marriage certificate was not issued prior to or following the November 2002 ceremony. Thus, such ceremony does not constitute a valid marriage. The marriage could nonetheless be deemed valid if the appellant stated that she believed the marriage was valid and the evidence was not to the contrary. The record shows; however, that the appellant has not asserted that she believed the 2002 ceremony to constitute a valid marriage. The evidence noted above shows that she and the Veteran behaved as if they did not believe they were in a valid marriage prior to 2009. While the evidence created after 2002 is not dispositive of the parties state of mind at the time of the 2002 ceremony, it is probative of what they believed they were doing in 2002. The evidence is against a finding that the appellant believed the 2002 ceremony constituted a valid marriage. The appellant has asserted that she entered into a relationship as "man and wife" with the Veteran in February 20009. To the extent she asserts this constituted a valid common law marriage, VA follows the applicable state law in determining whether a marriage is valid. 38 C.F.R. § 3.1(j). While the Board does not dispute the appellant's commitment to her relationship with the Veteran, common law marriage is not recognized in the state of Florida. Florida law specifically states that no common law marriage entered into after January 1, 1968 shall be valid, with certain exceptions that do not apply in this case. See West's Florida Statutes Annotated, Title XLII, Domestic Relations, Chapter § 741.211 (West 2005). The evidence is also against a finding that the appellant believed she was entering into a valid common law marriage with the Veteran. She has reported that she entered into a relationship with the Veteran in February 2000, but has also reported that she was not divorced from her second husband until October 2000. She has not asserted that she believed she could enter into a marital relationship with the Veteran while married to another person. Thus, there is no basis for finding that a valid or deemed valid marriage existed prior to December [redacted], 2009. The preponderance of evidence in this case is against a finding that the appellant and Veteran were married for a year or more prior to his death. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 510 7(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER The appeal to be recognized as the Veteran's surviving spouse for the purpose of VA benefits is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs