Citation Nr: 1341368 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 12-30 895A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to recognition as the Veteran's surviving spouse for purposes of establishing eligibility for death pension benefits. 2. Entitlement to death pension benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to January 1969. He died in January 2010 and the appellant seeks surviving spouse benefits. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 letter from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the appellant's claim for benefits. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Board's decision addressing the issue of whether the appellant is entitled to recognition as the Veteran's surviving spouse is set forth below. The underlying issue of entitlement to death pension benefits, to include the question of whether the appellant meets the income and net worth requirements, is addressed in the remand following the order; this matter is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on her part, is required. FINDINGS OF FACT 1. The Veteran and appellant were married in June 1987. 2. The Veteran and appellant divorced in April 2004 or April 2005. 3. The Veteran and appellant held themselves out as husband and wife to the public, subsequent to reconciling in 2007. 4. The Veteran and appellant resided together for more than one year prior to the Veteran's death. 5. The appellant lacked knowledge that common law marriages are not recognized in Pennsylvania. 6. The information of record reflects that no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits. CONCLUSION OF LAW Resolving all reasonable doubt in her favor, the appellant is entitled to recognition as the surviving spouse of the Veteran for purposes of VA death benefits. 38 U.S.C.A. § 101(3), 103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.50, 3.52, 3.53, 3.54, 3.102, 3.205 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The law provides that VA death benefits may be paid to a surviving spouse who was married to a veteran: (1) one year or more prior to a veteran's death, or (2) for any period of time if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C.A. §§1102, 1304, 1541; 38 C.F.R. §3.54. The term 'surviving spouse' means a person who was the spouse of the veteran at the time of a veteran's death, and who lived with the veteran continuously from the date of marriage to the date of a veteran's death (except where there was a separation which was due to the misconduct of, or procured by, a veteran without the fault of the spouse in the case of temporary separations) and who has not remarried or (in cases not involving remarriage) has not since the death of a veteran lived with another person and held himself or herself out openly to the public to be the spouse of such other person. See 38 U.S.C.A. §101(3); 38 C.F.R. § 3.50. For purposes of VA benefits, a marriage means a marriage valid under 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. 38 C.F.R. §103(c); 38 C.F.R. §3.1(j). The appellant has the burden to establish her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994); citing Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). Where an attempted marriage is invalid by reason of legal impediment, VA laws allow for certain attempted marriages to be nevertheless 'deemed valid' if certain legal requirements are met. Basically, such an attempted marriage will be 'deemed valid' if: (a) the attempted marriage occurred one year or more before the Veteran died; and (b) the claimant entered into the marriage without knowledge of the impediment; and (c) the claimant cohabited with the Veteran continuously from the date of the attempted marriage until his death; and (d) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits. 38 U.S.C.A. §103(a); 38 C.F.R. §3.52. Where a surviving spouse has submitted proper proof of marriage and also meets the requirements of 38 C.F.R. § 3.52, the claimant's signed statement that she had no knowledge of an impediment to the marriage to the Veteran will be accepted, in the absence of information to the contrary, as proof of that fact. 38 C.F.R. § 3.205(c). In Colon v. Brown, 9 Vet. App. 104 (1996), the Court determined that in cases in which there is an impediment to entering into a common-law marriage, if the appellant was unaware of the impediment, then an otherwise invalid common-law marriage could be deemed valid. In the Commonwealth of Pennsylvania, where the Veteran and appellant resided, a common law marriage established prior to January 1, 2005 is valid. The Pennsylvania Legislature has rendered common law marriage proactively invalid after January 1, 2005, by statute, stating that "[n]o common-law marriage, contracted after January 1, 2005, shall be valid. Nothing in this part shall be deemed or taken to render any common-law marriage otherwise lawful and contracted on or before January 1, 2005, invalid." 23 Pa.C.S.A. § 1103. In this case, the appellant potentially entered into a common-law marriage with the Veteran in 2007, and therefore, it is not recognized as a valid common law marriage by the Commonwealth of Pennsylvania. The requirements for establishing a valid marriage in the Commonwealth of Pennsylvania includes the requirement of marriage ceremony. 23 Pa.C.S.A. § 1103 (2005); see also 23 Pa.C.S.A. § 1101 (2013); 23 Pa.C.S.A. § 1310 (2013). VA has determined that the requirement of a marriage ceremony by a jurisdiction that does not recognize common-law marriage constitutes a 'legal impediment' to such a marriage for purposes of 38 U.S.C.A. § 103(a). VAOPGCPREC 58-91; see also Colon v. Brown, 9 Vet. App. 104 (1996). The Veteran and appellant were legally married in June 1987; however, they later divorced in April 2004 or 2005. The divorce decree is not included in the file so the exact year of the divorce has not been verified. The date of the divorce is based on the appellant's testimony and documents that she provided. The appellant reported that after the Veteran was diagnosed with cancer, the Veteran and the appellant reconciled in 2007. The Veteran moved into the home with the appellant and their son. The appellant testified during the Board hearing that she cared for the Veteran until his death in January 2010. During the period from 2007 to 2010, the appellant has asserted that she and the Veteran considered each other husband and wife. See statement received from Appellant in July 2013. In a statement received by the appellant, the appellant explained that she was the Veteran's wife and that they went to church together, shopped together, shared a bed together, and had dinner together. See statement received from Appellant in December 2011 and dated in October 2011. The appellant submitted numerous statements by both friends and relatives attesting that the Veteran and the appellant conducted themselves as husband and wife during the period after their reconciliation. See statements from I.C. (sister-in-law of Veteran) submitted in November 2011; see statement from R.S. (friend of son) submitted in November 2011; see statement from Veteran's niece, D.D., dated in May 2012; see also statement from friend of Veteran, A.J., submitted in February 2012; see also statement from Veteran's sister, M.C. dated in November 2010. A March 2008 document shows that the Veteran gave the appellant power of attorney over his affairs. In the document, the Veteran refers to the appellant as his spouse. In March 2008, the appellant signed a document acknowledging that she was the person identified at the "attorney-in-fact" for the Veteran. The appellant and the Veteran continued to reside together from 2007 to 2010, when the Veteran died. There is no statement from any person to the contrary. Therefore, the evidence shows that the appellant and the Veteran held themselves out as husband and wife to the public, subsequent to their reconciliation in 2007. After carefully considering the claim in light of the record and the applicable law, and affording the appellant all reasonable doubt, the Board is of the opinion that the appellant has met her burden of establishing that she is the surviving spouse of the veteran for VA benefits purposes. The evidence appears to show that the Veteran and the appellant entered into a common law marriage when they reconciled in 2007 and lived as husband and wife until the Veteran's death. Even though common law marriage is not recognized in Pennsylvania after 2005, the attempted common law marriage by the Veteran and appellant may be deemed valid for VA purposes, for the following reasons. In VAOPGCPREC 58-91, the General Counsel of VA has held that lack of residence in a jurisdiction recognizing common law marriages is not a bar to establishing a common law marriage for a surviving spouse claimant. The rationale is that the common law marriage could be 'deemed valid' under 38 C.F.R. § 3.52 on the theory that the surviving spouse could have entered into the purported common law marriage without knowledge of the fact that there was an impediment to the marriage. In this case, the impediment would be the jurisdiction's nonrecognition of common law marriages. Here, the requirements allowing for the appellant and Veteran's attempted common law marriage to be 'deemed valid' are met. See 38 C.F.R. § 3.52. The question becomes whether the appellant was unaware of the impediment of her common law marriage that Pennsylvania does not recognize common law marriage commenced after 2005. In the pertinent June 1991 General Counsel opinion entitled Meaning of "Legal Impediment" for Purposes of Deemed-Valid Marriage Under 38 U.S.C. s 103(a) -- Common-Law Marriage, reference was made to the Attorney General's statement regarding the issue of "knowledge" of the appellant. The Attorney General found that nowhere in section 103 is there language which supports a narrower reading of the term "legal impediment." The Attorney General further reasoned that, as a widow "could hardly be without factual knowledge of her own prior marriage," the lack of knowledge requirement must have a broader meaning, encompassing lack of knowledge of the law prohibiting the marriage, not just "knowledge of the factual ground which activated the law." 42 Op. Att'y Gen. at 38-40 (emphasis added). Here, the appellant had factual knowledge that she married the Veteran and divorced the Veteran in the past. She also testified that the Veteran and the appellant had planned to be married in April 2010 but the Veteran died prior to the ceremony. Although claiming that the Veteran was her husband and she was his wife and that they lived as such, she does not appear to have knowledge about common law marriage or whether it was recognized in Pennsylvania or not. Although the appellant did not use the words "common law marriage" when describing her marriage, she expressed that the Veteran and herself considered themselves husband and wife and carried out their affairs as a married couple. This evidence is not only based on the appellant's statement, but also on countless relatives and friends of the appellant and Veteran. Furthermore, the intent of the Veteran is also gleaned from his act of giving the appellant power of attorney over his affairs and referring to the appellant as his spouse in this document. Although the legal requirements vary by jurisdiction, typically all of the following elements must be present to establish a common law marriage: (1) an explicit or inferred agreement between the parties to be married; (2) cohabitation for some period of time; (3) holding each other out to the public as husband and wife. See M21-1MR III.iii.5.C.12.d. In Pennsylvania, prior to January 1, 2005, "a common law marriage can only be created by the exchange of words in the present tense ['verba in praesenti?'], spoken with the specific purpose that the legal relationship of husband and wife is created by that." Staudenmayer v. Staudenmayer, 552 Pa. 253, 261-62, 714 A.2d 1016, 1020 (1998). Here, the appellant and the Veteran appear to have had an explicit or inferred agreement that they were married, the evidence shows that they lived together for three years prior to the Veteran's death and the evidence overwhelmingly shows that they held each other out to the public as husband and wife. In conclusion, the Board finds that the appellant and the Veteran had a common law marriage in Pennsylvania. This marriage is invalid as explained above as it commenced subsequent to January 1, 2005. Here, although claiming that the Veteran was her husband and she was his wife and that they lived as such, she does not appear to have knowledge about common law marriage or whether it was recognized in Pennsylvania or not. For these reasons, the Board finds that she lacked knowledge of the impediment of her marriage with Veteran, that common law marriages after 2005 was considered invalid in Pennsylvania. See Colon v. Brown, 9 Vet. App. 104 (1996). The record does not show that a claim for VA death benefits has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits. There is no other woman purporting to be the Veteran's surviving spouse. Also, the attempted common law marriage occurred more than one year prior to the Veteran's death, without any separation between the two parties. The Veteran and the appellant cohabited together continuously from the date of the attempted marriage in 2007 to 2010. The legal statements made between the couple regarding power of attorney suggesting the Veteran's belief that the appellant was his wife was dated in 2008, which is well before one year prior to his death. In sum, the attempted common law marriage between the Veteran and appellant is deemed valid for VA purposes. Further, the appellant is the Veteran's surviving spouse under VA regulations. This is because she was his spouse at the time of his death, and had lived with him continuously from the date of the 'deemed valid' common law marriage until his death. ORDER Entitlement to recognition as the Veteran's surviving spouse for the purpose of VA death benefits purposes is granted. (CONTINUED ON NEXT PAGE) REMAND The Board's decision addressing whether the appellant should be recognized as the Veteran's surviving spouse does not end the inquiry in this matter. Rather, consideration of the underlying claim for VA nonservice-connected death pension benefits is required. The Board's review of the record reveals that further action on this matter is warranted. As noted above, death pension is a benefit payable to a veteran's surviving spouse or child because of the veteran's nonservice-connected death. See 38 U.S.C.A. §§ 101, 1521(j), 1541, 1542; 38 C.F.R. § 3.3(b)(4). Generally, basic entitlement exists if the claimant is shown to be the surviving spouse or child of the veteran, the veteran had qualifying service as defined by VA law and regulation, and the surviving spouse or child meets certain income and net worth requirements. Id. Here, review of the record reveals that the RO only considered the issue of whether the appellant was a proper claimant (i.e., surviving spouse). Specifically, the RO did not address the other elements of a claim for nonservice-connected nonservice-connected death pension benefits, including whether the appellant has met certain income and net worth requirements necessary for basic entitlement. As the Board is prohibited from considering these questions in the first instance, a remand is necessary to allow the agency of original jurisdiction (AOJ), be it the RO or the AMC, to readjudicate the matter of entitlement to nonservice-connected nonservice-connected death pension benefits, to include the question of whether, at any time pertinent to this appeal, the appellant meets the income and net worth requirements necessary for basic entitlement. See generally Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010). Prior to readjudication of this matter, the AOJ should ensure that all due process requirements are met, and that the record before it is complete. In other words, the AOJ should give the appellant another opportunity to present information and/or evidence pertinent to the claim for nonservice-connected nonservice-connected death pension benefits. In its letter, the AOJ should request that the appellant provide updated information regarding her income and net worth, to include completing a VA Form 21-527, Income-Net Worth and Employment Statement. Thereafter, the AOJ should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. Furthermore, it appears that greater benefits may be received by the appellant if she applies for dependency and indemnity compensation (DIC) benefits instead of, or along with, applying for pension benefits. The appellant should be notified one additional time of what benefits she is eligible to receive now that she is considered the surviving spouse of the Veteran. This will allow the appellant one more opportunity to discuss her options with a representative. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send the appellant notice regarding all benefits she can receive at the Veteran's surviving spouse, including DIC benefits. 2. Send the appellant and her representative a letter requesting that the appellant provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim for nonservice-connected nonservice-connected death pension benefits, that is not currently of record. Also, request that the appellant provide information regarding her income and net worth, to include completing a VA Form 21-527, Income-Net Worth and Employment Statement. 3. If the appellant responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim for nonservice-connected death pension benefits, to include the question of whether, at any time pertinent to this appeal, the appellant met/meets the income and net worth requirements for basic entitlement, in light of pertinent evidence (to particularly include all that added to the record since the last adjudication of the claim and in the Virtual VA file), and legal authority. 5. If the benefit sought on appeal remains denied, furnish the appellant and her representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs