Citation Nr: 1338401 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-17 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Recognition of the appellant as the Veteran's surviving spouse for VA benefits purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran had active duty service from October 1969 to May 1972 and from June 1974 to March 1976. He died in April 2007. The appellant claims to be the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 administrative decision issued by the VA Regional Office (RO) in Waco, 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. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. The Veteran died in April 2007. 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 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 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) (2013). In a letter dated in April 2008, 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 as 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. 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). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3. III. 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 in Amarillo, Texas since May 2004. See the appellant's April 2008 DIC application. 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 had a common law marriage. The evidence in support of the claim consists of the appellant's statements. In the April 2008 DIC application, the appellant stated that she and the Veteran were "married" in Amarillo, Texas on May 7, 2004. In a July 2008 statement, the appellant stated that she and the Veteran were husband and wife from March 2005 to July 2007 and they lived together in Texas until March 2007 when she was arrested. The appellant is currently incarcerated. The appellant submitted two statements in support of her claim that she is the common law spouse of the Veteran. She submitted two VA Forms 21-4171, supporting statements regarding marriage, by J.S. and T.S. J.S. and T.S. both purportedly indicated in the statements that they had known the Veteran for 12 years and met the Veteran and appellant every day, they considered the Veteran and appellant to be husband and wife, and the Veteran and appellant lived together as husband and wife from March 2005 to 2007 and were generally known as husband and wife. The RO contacted J.S., one of the individuals who purportedly completed the form. The RO called J.S. using the telephone number provide on the form. J.S. informed the RO that she did not remember completing the form and did not know anyone by that name. The RO attempted to contact T.S. by telephone and received no answer. See the July 2009 report of contact. The appellant was informed of this information. In an August 2009 statement, the appellant indicates that J.S. and T.S. knew her but they knew her by a nickname, "B.J." not her real name. The Board finds that the appellant's statements that she was in a relationship with the Veteran to be competent. The appellant is competent to describe an observable event such as living with another person. Lay statements may serve to support a claim by supporting the occurrence of lay-observable or firsthand events. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, the appellant's statements are not credible, and therefore, have no probative value. The appellant's own statements are internally inconsistent. In two different statements, she provides different dates for when her relationship with the Veteran began. In one statement, she asserts that she and the Veteran began living as man and wife in May 2004 but in another statement, she states that they began living together in March 2005. Her statements are inconsistent with the Veteran's own statements concerning their relationship and are not supported by the evidence of record. The appellant submitted two lay statements in support of her claim, purportedly from two individuals who had knowledge of the common law marriage. The RO contacted one of the individuals by telephone and the individual informed the RO that she did not know the appellant. The credibility of the statements by J.S. and T.S. is called into question since the purported author of one of the statements, J.S., has no recollection of making the statement and did not know the appellant. The appellant has not been able to submit any evidence to corroborate her assertions that she and the Veteran were in a common law marriage and represented themselves as husband and wife. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). In some of the VA hospital records and VA treatment records dated from January 2007 to April 2007, the appellant was identified as the Veteran's common law spouse. However, the VA records show that this representation was made by the appellant to VA, not by the Veteran. A January 24, 2007 VA hospital record notes that the Veteran's 'common-law wife" witnessed tonic-clonic activity in the Veteran. A February 15, 2007 VA hospital record indicates that the Veteran was in a cocaine-induced coma and the appellant has represented herself as the Veteran's common law spouse but there was no documentation to support this and the Veteran was not conscious so they were unable to ask the Veteran. The hospital record notes that there was no medical power of attorney and the Veteran used to list his father as his power of attorney. A March 19, 2007 VA treatment record notes that the Veteran was married and lived in Amarillo with his wife. The appellant's assertions that to VA personnel that she was the common law spouse of the Veteran are not supported by evidence of record and are not supported by the Veteran's own personal information in the VA healthcare system. VA hospital records dated from January 23, 2007 to January 30, 2007 indicate that the Veteran was admitted with a diagnosis of a hyperglycemic hypersmolar nonketotic coma, possible new-onset seizures, and cocaine usage. A January 26, 2007 VA record notes that the Veteran's niece was listed as his emergency contact. VA hospital records dated from February 14, 2007 to February 15, 2007 indicate that the Veteran was admitted with a diagnosis of decompensated cocaine-induced dilated cardiomyopathy with acute use, cocaine-induced cardiac ischemia, and persistent hypoglycemia. The records note that the Veteran's girlfriend visited him in the hospital and he signed out of the hospital against medical advice. A February 1, 2007 VA hospital record indicates that the Veteran was referred for determination of medical power of attorney. The VA social worker noted that the Veteran lived in Amarillo with the appellant and the appellant was representing herself as the Veteran's common law wife. It was noted that there was no documentation that indicates this and the Veteran was in a cocaine-induced coma and there was no way to verify this with the Veteran. The social worker further noted that the Veteran has always listed his father as next of kin but there was no phone number listed. A letter was mailed to the father's address and was returned. The Veteran was discharged on January 29, 2007 and the plan was to discuss advance direction with the Veteran and clarify who he wants to have the medical power of attorney. VA hospital records indicate that the Veteran was again hospitalized on March 30, 2007 with decreased loss of consciousness secondary to cocaine abuse, hypoglycemia, decompensated congestive heart failure, hypertension, diabetes mellitus type II, and cerebrovascular accident. The Veteran presented with complaints of a decreased level of consciousness and the details of his presentation were unclear. The Veteran was intubated and sedated prior to arrival and could not give a history. There were no family members with him. Later in the hospitalization, the Veteran was extubated. The idea of code was discussed with the Veteran and he clearly expressed that he did not want to be resuscitated or intubated. The Veteran deteriorated despite medical efforts and he was pronounced dead on April [redacted], 2007. There were no family members present. The VA records indicate that the Veteran's emergency contact was his wife, A. N., of Broussard, Louisiana. His next of kin was [redacted]. An April 9, 2007 case manager note indicates that the Veteran had been known to have lived with friends. The Board finds that the weight of the evidence establishes that the Veteran did not represent himself as married to the appellant. The Veteran's statements made during his lifetime provide evidence against a finding that he was in a common law marriage with the appellant or that he had represented himself as the husband of the appellant. Review of the VA treatment records and hospital records show that the Veteran represented himself as unmarried, divorced, or widowed. An October 2002 VA treatment record notes that the Veteran reported that he was unmarried and he lived with a girlfriend. He did not identify the name of the girlfriend or describe her as his spouse. In a September 2003 VA treatment record, the Veteran reported that he was homeless and his girlfriend did not live locally. He reported that his wife died of cancer. The Veteran indicated that when he left treatment, he would be homeless. A July 2004 VA treatment record notes that the Veteran reported that he lived alone. A May 2006 VA emergency detox record indicates that the Veteran's emergency contact was listed as "[redacted]" and this person was described as a "friend." The May 2006 VA detox records indicate that the Veteran was divorced and he reported that he was homeless and he wanted to go to a homeless shelter. The records noted that the Veteran reported that he stayed at the Fair City mission. VA treatment records dated in August 2006 indicate that the Veteran was widowed and homeless. It was noted that a mission was his home. Discharge records dated in August 2006 indicate that the "[redacted]" was to accompany him on discharge and she was described as a "friend." This individual did not show up to accompany the Veteran on discharge. An October 2006 VA treatment record indicates that the Veteran was widowed. A December 2006 VA record notes that the Veteran's emergency contact was "[redacted]" and she was described as a "live-in friend." A January 2007 VA treatment record notes that the Veteran's niece was listed as an emergency contact in October 2005. On January 26, 2007, VA contacted the Veteran's niece and she reported that she would attempt to contact the Veteran's father, and if this failed, she would participate in the decision-making on the Veteran's behalf. She denied any knowledge of a common law relationship. Review of the claims file shows that VA paid the Veteran as a single veteran with no dependents. See the VA letters dated in March 2004 and January 2005. The weight of the evidence shows that the Veteran did not represent himself as a husband of the appellant or indicate that he was in a common law relationship with the appellant. In the statements the Veteran made to VA in the course of his treatment, he represented himself as a single individual. When he referred to the appellant, he described her as a friend not a common law wife or wife. The Board places great probative weight on the Veteran's 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). 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. ____________________________________________ M. Tenner Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs