Citation Nr: 1338661 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-17 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to recognition as an eligible surviving spouse for the purpose of qualifying to receive dependency and indemnity compensation (DIC) and death pension benefits. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1979 and was awarded the Purple Heart Medal. He died in October 2006, and the appellant seeks entitlement to Department of Veterans Affairs (VA) DIC and death pension benefits as a surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 administrative decision issued by the VA Regional Office (RO) in Muskogee, Oklahoma which found that a common law marriage did exist between the Veteran and the appellant as of October [redacted], 2006. In addition, this administrative decision determined that the appellant was not entitled to recognition as the Veteran's surviving spouse for purposes of receiving DIC and death pension benefits. In December 2011, the RO granted service connection for the cause of the Veteran's death. In April 2013, the appellant testified before the undersigned at a hearing at the RO (Travel Board). A hearing transcript has been associated with the Veteran's Virtual VA claims file. During this April 2013 hearing, the appellant submitted additional evidence in support of her claim. The appellant's representative waived initial RO consideration of this evidence in April 2013. See 38 C.F.R. § 20.1304(c) (2013). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the appellant's claim. A review of the documents in such folder reveals a copy of the April 2013 hearing transcript. FINDINGS OF FACT 1. The Veteran and the appellant were first married in April 1986. 2. The Veteran and the appellant were divorced by a final decree of an Oklahoma state court in February 2006. 3. The Veteran died on October [redacted], 2006. 4. The most persuasive and credible evidence establishes that a common law marriage existed between the Veteran and the appellant under the laws of the state of their residence, Oklahoma, as of October [redacted], 2006. 5. The Veteran and the appellant were legally remarried on October [redacted], 2006. 6. At the time of the Veteran's death, the appellant and the Veteran had been married for a period of less than one year; no children were born to the couple during the marriage or prior to the marriage; and the appellant was not married to the Veteran before or during his period of military service nor did this marriage in 2006 occur within 15 years of the Veteran's separation from service in 1979. CONCLUSION OF LAW There is no legal basis to recognize the appellant as an eligible surviving spouse for the purpose of receiving DIC or death pension benefits. 38 U.S.C.A. §§ 101(3), 103, 1304 (West 2002); 38 C.F.R. §§ 3.1(j), 3.5, 3.50, 3.54(c), 3.205 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In this case, the RO did not send the appellant a VCAA notice letter informing her of the evidence needed to establish entitlement to recognition as the surviving spouse of the Veteran. The appellant, however, is not prejudiced by this VCAA notice failure as she and her representative have demonstrated an actual knowledge of what is necessary to be recognized as the Veteran's spouse in this case. Indeed, the appellant has readily admitted she and the Veteran divorced in February 2006, and does not challenge the validity of that divorce. She instead asserts that she has been in a common law marriage with the Veteran from the time of their divorce until they were legally remarried on October [redacted], 2006 so in essence she had been continuously married to the Veteran for 20 years. She has submitted evidence and provided testimony and many statements from friends in support of her claim. It is also notable that in connection with a prior closely related claim, the appellant was asked to provide evidence that would establish her entitlement to recognition as the surviving spouse of the Veteran in RO letters dated in February 2007 and May 2007. Accordingly, the Board concludes that any failure to provide VCAA compliant notice was indeed harmless as the appellant has actual knowledge of what is required to substantiate her appeal. Moreover, a "reasonable person" would be expected to understand from the law, regulations, and analysis contained in statements of the case of record what would be necessary to gain recognition as the Veteran's surviving spouse. Concerning the VA's duty to assist, the Veteran's own statements to VA prior to his death, his medical records, his death certificate, marriage certificates, and the appellant's and her friends' statements of argument have been associated with the record. Neither the appellant nor her representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The appellant also testified before the undersigned in April 2013. With respect to the hearing, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the "hearing officer" who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the current appellate issue was noted at the beginning of the hearing and testimony was provided concerning the issue on appeal. Neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the appellant's appeal has been consistent with said provisions. As explained above, the Board is satisfied that any procedural errors in the originating agency's development and consideration of the issue on appeal were insignificant and nonprejudicial to the appellant. The appellant has been accorded ample opportunity to present evidence and argument in support of her claim. See 38 C.F.R. § 3.103 (2013). Accordingly, the Board will address the issue on appeal. II. Recognition as an Eligible Surviving Spouse DIC benefits are a payment made by VA because of a service-connected death occurring after December 31, 1956. 38 U.S.C.A. § 101(14); 38 C.F.R. § 3.5(a)(1). "Spouse" has been 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); however, on June 26, 2013, the U.S. Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. 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 currently defined in the regulation 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, 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). DIC may be paid to a surviving spouse if the marriage to the Veteran occurred before or during his or her service or, if the marriage took place after service, if (1) the claimant married the Veteran before the expiration of 15 years after the period of service in which the injury or disease that caused the Veteran's death was incurred or aggravated, or (2) the claimant was married to the Veteran for 1 year or more prior to the Veteran's death, or (3) the claimant was married to the Veteran for any period of time if a child was born to the marriage or was born to the couple before their marriage. 38 U.S.C.A. § 1304; 38 C.F.R. § 3.54. Pursuant to claims for entitlement to recognition as the surviving spouse of a veteran for DIC benefits, a marriage for VA purposes is established 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 parties resided when the right to benefits accrued. See 38 U.S.C.A. 103(c). Thus, the standard of proof outlined in the applicable local law for determining whether or not a marriage existed between the appellant and veteran applies and trumps the "benefit of the doubt" standard generally applicable in the processing of a claim for VA benefits. See Burden v. Shinseki, 25 Vet. App. 178 (2012). The Court has also indicated in Scott v. Principi, 3 Vet. App. 352, 354-57 (1992) that VA must pay specific attention to the way in which the applicable local law is applied. 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 Oklahoma, where the Veteran and the appellant resided, recognizes common law marriages. Oklahoma case law has established that a party asserting a common law marriage must prove the following elements: (1) an actual and mutual agreement between the spouses to be husband and wife; (2) a permanent relationship; (3) an exclusive relationship, proved by cohabitation as man and wife; (4) and the parties to the marriage must hold themselves out publically as husband and wife. See Estate of Stinchcomb v. Stinchcomb, 674 P.2d 26, 28-29 (Okla. 1983). Additionally, the party that asserts a common law marriage must prove the elements and the common law marriage must be established by clear and convincing evidence. Id. Of particular import is the fact that Oklahoma state 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 has recently 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, supra at 186 (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). Indeed 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 where the parties resided when the right to benefits accrued. As such, the Board will examine the evidence in this case in accordance with Oklahoma's "clear and convincing" standard of proof. The appellant has filed a claim for VA death benefits, to include DIC benefits, asserting entitlement as the Veteran's surviving spouse. The appellant essentially asserts that her February 2006 divorce from the Veteran was involuntary on her part, that the couple had separated due to the Veteran's violent behavior, and that VA should consider their marriage to have been essentially continuous from 1986 (when they first married) until his death in October 2006. First, the Board has considered whether the Veteran and the appellant had a common law marriage under Oklahoma state law prior to October [redacted], 2006, the day the Veteran was released from the hospital and the date the RO has determined that a common law marriage began. The Board finds that a common law marriage did not exist between the Veteran and the appellant prior to this time. As previously indicated, the State of Oklahoma requires clear and convincing proof that the parties entered the relationship by mutual agreement, exclusive of all others with a consummating arrangement by cohabitation and the open assumption of marital duties. An October 19, 2006 VA treatment note reflects the Veteran's reports of being happy about a "reconciliation with his wife of 22 years after a temporary separation" for several months. A second October 19, 2006 VA treatment note indicates that the "ex-wife" of the Veteran was requesting assistance with paperwork. The appellant, in a May 2007 statement, described the Veteran's efforts following their February 2006 divorce to reconcile, writing that "he constantly made contact with me for us to get back together." Such evidence suggests that the parties were not in a relationship by mutual agreement with the open assumption of martial duties prior to October [redacted], 2006. With respect to the element of cohabitation, in a May 2007 statement, the appellant's friend indicated that the appellant had resided with her after the Veteran had filed for divorce and that the appellant had purchased a home following the divorce. A May 2007 statement from another of the appellant's friends indicated that the appellant had purchased a home after the divorce and that the Veteran remained in his "home out in the country." In a May 2007 statement, the appellant indicated that she had resided with the Veteran "at our home at all times except for the period of divorce proceedings." The Supporting Statements Regarding Marriage (VA Form 21-4171) submitted in July 2009 by the appellant's friends all indicated that the Veteran and the appellant did not reside together continuously. Such suggests that the Veteran and the appellant did not cohabitate for the period from February 2006 to October [redacted], 2006. Therefore, the Board finds that the record lacks clear and convincing evidence that the appellant and the Veteran did in fact agree to be married for the period between their divorce in February 2006 and October [redacted], 2006, with cohabitation and open assumption of marital duties, as is required under Oklahoma state law to establish a common law marriage. Additionally, to the extent that the appellant has contended that she either resided with the Veteran or that she remained in a romantic relationship with the Veteran for the period between their legal divorce in February 2006 and October [redacted], 2006, the Board finds that such statements are inconsistent with evidence of record. As such, the Board cannot render a finding that the Veteran and the appellant had a mutual agreement to be husband and wife and cohabitated as husband and wife. Specifically, the appellant has provided statements regarding the nature of her and the Veteran's relationship for the period between February 2006 and October [redacted], 2006 that are inconsistent with the record. In an August 2009 statement, the appellant wrote that she and the Veteran were married and "were together as husband and wife even though [they] divorced for a few months [they] were still together." However, in a prior May 2007 statement, the appellant wrote that she had rented and then purchased a house during the "period of divorce proceedings" and that the Veteran had "constantly made contact" with her during their period of separation in an attempt to reconcile. The May 2007 statements from J. S. and B. C. confirm that the Veteran and the appellant lived separately during and after the divorce. The May 2007 statement from B. C. indicates that the appellant resided with her following the Veteran's filing for divorce, that the appellant later rented a house and then purchased a home, all while the Veteran "continued to live at their home out in the country." Moreover, the May 2007 statement from J. S. confirms that the Veteran and appellant returned to "their home in the country" after the Veteran was discharged from the VA hospital in October 2006 and that the Veteran had stated he was "righting a wrong" by remarrying the appellant. Significantly, the Board notes that, effective September 23, 2008, VA regulations established that presumptive service connection for amyotrophic lateral sclerosis (ALS) was warranted if the disease manifested at any time after active duty service. See 38 C.F.R. § 3.318; See also 73 Fed. Reg. 54691 (Sept. 23, 2008). The appellant filed her claim for "service connected cause of my husband's death" in July 2009 and specifically cited to this revised regulation. As detailed above, the appellant's statements regarding her relationship with the Veteran prior to her July 2009 claim are directly contradictory to those made after her July 2009 claim. Consequently, the Board cannot render a finding that the recent statements are credible. With regards to the appellant's contention that her divorce from the Veteran in February 2006 was involuntary, the Board notes her April 2013 hearing testimony that she initially separated from the Veteran and agreed to the February 2006 divorce as she feared for her safety. She submitted a June 2012 statement from R. L., a friend who had worked for the local police department, stating that he feared for the appellant's safety due to the Veteran's behavior and felt that the Veteran may attempt "suicide by cop." She also submitted a June 2005 Radio Log Record from a local police department which documented a verbal domestic dispute between her and the Veteran. In addition, a May 2007 statement from B. C. indicated that the appellant divorced the Veteran as she feared "what he might do." However, the Board notes that 38 C.F.R. § 3.53(a) provides an exception for the continuous cohabitation provision for the period between the date of marriage and the death of the Veteran only. Crucially, the regulatory provisions pertain to separations. The appellant and the Veteran were not merely separated, they were legally divorced. The appellant does not contend and the record does not otherwise suggest that the February 2006 Decree of Divorce and Dissolution of Marriage issued by the state of Oklahoma is invalid or not an official document but rather has expressed regret for agreeing to divorce the Veteran. However, once divorced from the Veteran in February 2006, the appellant's status as his spouse was terminated. See, e.g., 38 C.F.R. § 3.1(j). Only if the judgment of divorce is legally invalid may the appellant possibly be considered the Veteran's "surviving spouse" because of an existing valid marriage and separation procured by the Veteran, or due to the Veteran's misconduct without the fault of the appellant prior to his death. Moreover, the date of the appellant's common law marriage to the Veteran has been found to be October [redacted], 2006. In this case, the Board observes that the probative credible evidence of record clearly reflects that the appellant and the Veteran were first married in April 1986, that they divorced in February 2006 via a decree issued by an Oklahoma state court, that they established a common law marriage nine days before his death, and that they were legally remarried five days prior to his death. Thus, the couple was not married for at least one year prior to the Veteran's death or within fifteen years of the Veteran's separation from service in July 1979. Additionally, no children were born to the couple either during the marriage or before the marriage. Consequently, although the appellant meets the regulatory definition of a surviving spouse under 38 C.F.R. § 3.50, she is not eligible for VA DIC benefits as the timing of her common law marriage and legal remarriage to the Veteran occurred less than one year prior to the Veteran's death. 38 U.S.C.A. § 1304; 38 C.F.R. § 3.54. Moreover, even assuming arguendo that the Veteran and the appellant entered into a common law marriage on February [redacted], 2006, the day after their divorce, they could not have been married for at least one year prior to the Veteran's death in October 2006. Accordingly, as the October 2006 marriage between the appellant and the Veteran does not meet the applicable criteria for receipt of DIC benefits as set forth by statute and regulation, the appellant is not an eligible surviving spouse for the purpose of receiving such benefits. The Board is very cognizant of the appellant's contention that except for a brief period of time, she was essentially married to the Veteran for "20 years." The Board is very sympathetic to the appellant's position; however, the Board is nonetheless bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002 & Supp. 2013); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Therefore, the claim must be denied. (CONTINUED ON NEXT PAGE) ORDER Recognition of the appellant as the Veteran's surviving spouse for the purpose of qualifying to receive DIC and death pension benefits is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs