Citation Nr: 1343079 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 12-02 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Pension Maintenance Center in Milwaukee, Wisconsin THE ISSUE Entitlement to status as surviving spouse for purposes of Dependents Indemnity Compensation (DIC) benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant, appellant's sister ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from August 1960 to May 1964. He died on August [redacted], 2006. The appellant has submitted a claim seeking DIC benefits as his surviving spouse. This matter is on appeal from an administrative decision by the Department of Veterans Affairs (VA) Pension Maintenance Center in Milwaukee, Wisconsin in October 2010. The appellant testified before the undersigned Veterans Law Judge in April 2013. A transcript of the hearing is of record. The Board notes that while the issue on appeal relates to a DIC claim, the decision on appeal was limited to the appellant's status as a "surviving spouse" for VA purposes. The extent to which the appellant is actually entitled to such benefits has not been considered by the RO, and the Board decision does not reach this aspect of the claim. FINDINGS OF FACT 1. The Veteran and the appellant were engaged in a common law marriage for the period from 1996 until his death in 2006. 2. The appellant did not evince the intent to desert the Veteran during the period of time where they did not live together. CONCLUSION OF LAW The criteria for recognition as the Veteran's surviving spouse for purposes of DIC benefits have been met. 38 U.S.C.A. §§ 101(3), 103, 1102 (West 2002); 38 C.F.R. §§ 3.1(j), 3.5, 3.50, 3.52, 3.55, 3.206 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In this case, to the extent it is being adjudicated, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Status as a Surviving Spouse While the evidence of record does not contain official documents such as marriage certificates or other similar certifications, it is not disputed that the Veteran and the appellant were legally married from 1967 until their divorce in 1975. The record also indicates that both the Veteran and appellant went on to marry other individuals and that those marriages both ended in divorce in 1996. See also 38 C.F.R. § 3.206 (the validity of a divorce decree face will be questioned by VA only when such validity is put in issue by a party thereto). According to her testimony at her hearing before the Board in April 2013, the appellant asserts she is the Veteran's "surviving spouse," because she reentered into a common law marriage with the Veteran in 1996. She pointed out that they held themselves out to be husband and wife, and shared a home in Myrtle Beach, South Carolina until they moved to Washington in approximately 2000. She also stated that they had joint checking and savings accounts, held joint ownership in property and ran a business together. On the occasions where this business was subject to litigation, she noted that both she and the Veteran were listed in the Complaint. Her relationship with the Veteran terminated in 2001, and he died August 2006. When a Veteran dies, his or her surviving spouse may be eligible to VA benefits, to include DIC benefits, death compensation and death pension. See 38 U.S.C.A. §§ 1121, 1310 & 1541 (West 2002 & Supp. 2013); 38 C.F.R. § 3.50(a) (2013). The term "surviving spouse" means a person who was * legally married to the Veteran under 38 C.F.R. § 3.1(j); * was the spouse of the Veteran at the time of the Veteran's death; * lived with the Veteran continuously from the date of marriage to the date of the Veteran's 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 * except as provided in § 3.55, has not remarried or has not since the death of the Veteran or, after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50 (2013). After a review of the evidence, the Board determines that all elements of 38 C.F.R. § 3.50 have been met, and the appellant qualifies as a "surviving spouse" for VA purposes. First, the record establishes that she was in a common law marriage with the Veteran from approximately 1996 to 2001. 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 C.F.R. § 3.1(j). While proof of marriage is generally established by documentation, such as a certificate of marriage, or other secondary evidence that a marriage actually occurred, 38 C.F.R. § 3.205 (2013), a common law marriage will be considered a valid marriage for purposes of death pension and DIC benefits if it is recognized under the law of the State at issue. See 38 C.F.R. §§ 3.1(j); 3.50; 3.205(a)(6). The state of South Carolina, where the Veteran and appellant cohabitated until approximately 2000, recognizes common law marriage when there is a mutual agreement between the parties to assume toward each other the relation of husband and wife. See S.C.REV.CODE ANN. § 20-1-360 (2013); Johnson v. Johnson, 112 S.E.2d 647, 651 (S.C. 1960). In such cases, an express contract is not necessary to form a common law marriage, and the agreement may be inferred from the circumstances. Id.; Kirby v. Kirby, 241 S.E.2d 415, 416 (S.C. 1978). Where the evidence reflects that the parties are participating in an "apparently matrimonial" cohabitation, and that while cohabiting the parties had a reputation in the community as being married, a rebuttable, but strong, presumption arises that a common-law marriage was created. Jeanes v. Jeanes, 177 S.E.2d 537, 539-40 (S.C. 1970); see also Barker v. Baker, 499 S.E.2d 503, 506 (S.C. Ct. App. 1998); Owens v. Owens, 466 S.E.2d 373, 375 (S.C. Ct. App. 1996). Circumstantial evidence relied upon to prove a common-law marriage includes the amount of time a couple has lived together, and whether the couple publicly held themselves out as husband and wife. Barker, 499 S.E.2d at 507. In this case, the Veteran has submitted February 2009 statements from three individuals who knew both the Veteran and appellant, and all of whom stated that the parties held themselves out as married. These people recalled that the Veteran and appellant referred to each other as "husband and wife" and wore wedding bands. These statements also corroborate the appellant's statements at her hearing before the Board that she and the Veteran owned a home and business together. It is true that the Veteran's medical records refer to the appellant as his "ex-wife" and that he was "divorced." However, at another treatment record from August 1998, the Veteran stated that he was married. The fact that these records are inconsistent diminishes their probative value to the point where they do not outweigh the probative value of the three statements from February 2009. Therefore, given this evidence, and the apparent low standard for common law marriages in the State of South Carolina, the Board can only conclude that a common law marriage existed. Moreover, although the Veteran and appellant later moved to Washington (which does not recognize common law marriage), this does not abrogate the previously established common law marriage. See VA Adjudication Procedures Manual M21-1MR (M21-1), Part III.iii.5.C.16.a (December 22, 2013). A common law marriage having been established, there is also no evidence to refute the conclusion that it existed until the Veteran's death in 2006. Although the appellant, by her own admission, ceased to live with the Veteran beginning in 2001, the mere fact that they no longer lived together does not end a common law marriage. See M21-1, Part III.iii.5.C.12.c (December 22, 2013) (a common law marriage cannot be terminated except through divorce, death or annulment; there is no "common law divorce"). Here, there is no documentation to support that the common law marriage between the appellant and the Veteran was terminated. Therefore, the Board must conclude that the parties were still married when the Veteran died in 2006. Next, while the Veteran and the appellant did not live together from 2001 until the Veteran's death in 2006, the Board determines that this not the fault of the appellant. In this regard, the requirement that the appellant live "continuously from the date of marriage to the date of the Veteran's death" is rather narrowly defined to the extent it effectively applies only to cases where the appellant leaves the Veteran on her own accord. Indeed, the two parties will be living together for purposes of 38 C.F.R. § 3.50, even in cases where the decision to separate is a mutual decision. See Alpough v. Nicholson, 490 F3c 1352 (Fed. Cir. 2007) (parties are not living together only if there was not the "intent on the part of the surviving spouse to desert" the Veteran (emphasis in the original)). Here, at her hearing before the Board in April 2013, the appellant stated that the Veteran had become "nasty" after his legs were amputated, and that she feared for her safety. At best, her testimony indicates that the decision to separate was mutually agreed upon by both she and the Veteran. Therefore, despite the fact that the Veteran and the appellant did not live together from 2001 until the Veteran's death in 2006, they are still characterized as living together for purposes of 38 C.F.R. § 3.50. Finally, there is no evidence of record that indicates that the appellant has been married since the Veteran's death in 2006. In conclusion, when evaluating the evidence of record, the Board concludes that the Veteran and appellant entered into a common law marriage as defined by the State of South Carolina which terminated only upon his death in 2006. Moreover, while the couple did not live together since 2001, this was not due to the intent on the appellant's part to desert. Therefore, the requirements of 38 C.F.R. § 3.50 have been met, and the appellant may be seen as the surviving spouse for purposes of DIC benefits. ORDER Recognition as the Veteran's surviving spouse for purposes of DIC benefits is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs