Citation Nr: 1339314 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 10-17 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to recognition of the Appellant as the surviving spouse of the Veteran for the purpose of the Department of Veterans Affairs benefits. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL C.L., M.L., and P.H. ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1967 to March 1971. He died in December 2007. The Appellant seeks status as the surviving spouse of the Veteran for the purpose of eligibility for Department of Veterans Affairs benefits. This matter is before the Board of Veterans' Appeals (Board) on appeal of an administrative decision in January 2009 by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2012, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2012, the Appellant appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. FINDING OF FACT The Appellant and the Veteran were never formally married prior to his death, nor did the Veteran hold himself out in public as the husband of the Appellant. CONCLUSION OF LAW The Appellant is not entitled to recognition as the surviving spouse of the Veteran for purpose of VA benefits. 38 U.S.C.A. §§ 101(3), 103 (West 2002); 38 C.F.R. §§ 3.1(j), 3.50 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. The VCAA does not apply in this case, because there is no reasonable possibility that any further assistance would aid the Appellant in substantiating the claim. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (The U.S. Court of Appeals for Veterans Claims held that the VCAA does not apply to a claim if there has been factual development and there is no reasonable possibility that any further assistance would aid the appellant in substantiating the claim.). REASONS AND BASES FOR FINDING AND CONCLUSION Dependency and indemnity compensation, death pension, and accrued benefits are payable to a Veteran's surviving spouse when statutory and regulatory requirements have been met. 38 U.S.C.A. §§ 1310, 1541, 5121; 38 C.F.R. §§ 3.3(b)(4), 3.5(a), 3.1000(a), (d)(1). For the purpose of eligibility to receive VA benefits, a "surviving spouse" means a person of the opposite sex whose marriage to a Veteran meets VA requirements described below and who was the spouse of a Veteran in question at the time of the Veteran's death, and, in general, continuously lived with the Veteran from the date of marriage to the date of 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 has not remarried or openly held oneself to the public to be the spouse of another person. 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b)(1) (2013). For VA purposes, "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 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). The record show that the Veteran was residing in Kansas, where he died in December 2007. Lay witness statements from several people to include the Appellant, the family members, co-workers, and friends, indicate that for about twenty-two years before the Veteran's death, he and the Appellant cohabitated and regarded themselves as husband and wife by common-law marriage. To establish a common-law marriage in Kansas, a plaintiff must prove (1) capacity of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out to the public as husband and wife. Fleming v. Fleming, 559 P.2d 329, 331 (Kansas 1977). Each element must coexist to establish a common-law marriage. "Although the marriage agreement need not be in any particular form, it is essential there be a present mutual consent to the marriage between the parties." Driscoll v. Driscoll, 552 P.2d 629, 632 (Kansas 1976). The burden to prove a common-law marriage rests upon the party asserting it. In re Adoption of X.J.A., 166 P.3d 396 (Kansas 2007). Unfortunately, the evidence shows that, unlike the Appellant and others, the Veteran did not believe that he was in fact married. And it cannot be said that he attempted to form a common-law marriage. For example, the Veteran did not hold himself out to the community as the husband of the Appellant. The Veteran's medical records show that he was not married. The Veteran's patient administration record, listed the Appellant as a "friend" and VA medical records, dated in January 2008, show that the Veteran was accompanied to a VA facility by a "friend." In January 2007, a social worker tried unsuccessfully to contact the Veteran's "girlfriend," the Appellant). Also, the Veteran's Application for Compensation and Pension, received by VA in January 2004, listed the Appellant as a "friend". The Veteran did not complete the section of the application used to designated information concerning "marriage," and he denied having any children. As the informant for the Veteran's death certificate, the Appellant described her relationship to the Veteran as "common-law spouse." Except for a tax return in 1989, the Veteran and the Appellant held themselves out as "single." As to for their business dealings, the Veteran and the Appellant did not hold themselves out as a married couple. For example, automobile insurance policies show that the Veteran and Appellant denied being married on policies dated from 2000 to 2001and 2005 to 2006 and a quit claim deed signed in September 2005 showed that the Veteran and Appellant acquired the property as joint tenants, instead of tenants in the entirety, a legal designation given to joint tenants who are married at the time of purchase. However, it has been alleged, by the Appellant, as well as others, that the Veteran and the Appellant had essentially held themselves out as "married". A family friend, Ms. P.H., testified that the Veteran and Appellant cohabitated for twenty-two years. During that time, according to Ms. P.H., the Veteran and the Appellant were a committed couple who introduced themselves as husband and wife. The Appellant's son, Mr. M.L., testified that the Veteran was like a step father to him during the eleven years that he lived with the Veteran. The preceding evidence, in the Board's opinion, shows that the Veteran's state of mind, contrary to the assertions made by the Appellant and others, was that he was not married to the Appellant at his death. The record shows that Veteran did not hold himself out "to the public" as the husband of the Appellant in his personal dealings, including health care and property rights. Nor is it shown that there existed "mutual consent" to demonstrate such a marital relationship. As a valid marriage, a common law marriage, or a deemed valid pursuant to VA law and regulations is not shown, the Board finds that the appellant is not a "surviving spouse" for purpose of establishing eligibility for VA death benefits. As the law is dispositive, it must be denied for lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Recognition of the Appellant as the surviving spouse of the Veteran for the purpose of VA benefits is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs