Citation Nr: 1423964 Decision Date: 05/28/14 Archive Date: 06/06/14 DOCKET NO. 11-23 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether the appellant is an eligible surviving spouse for the purpose of receiving VA death benefits. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant, B. M. and M. S. ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1969. This appeal to the Board of Veterans' Appeals (Board) arises from rating decisions issued by the Muskogee, Oklahoma Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2012, the appellant provided testimony at a videoconference hearing. A transcript of the hearing is of record. The appellant submitted additional evidence both during and after the hearing along with waivers of initial consideration of the evidence by the RO. FINDINGS OF FACT 1. The Veteran and the appellant lived together continuously from 2002 until his death in August 2010, however, dissolution of a previous marriage was not finalized until May 2010. 2. The appellant and the Veteran were in a common law marriage less than one year prior to his death in August 2010 and therefore, the appellant is not an eligible surviving spouse for the purposes of receiving VA death benefits. 3. As the appellant is not an eligible surviving spouse for the purpose of receiving VA death benefits, the claim for service connection for the cause of the Veteran's death is moot. CONCLUSIONS OF LAW 1. The criteria for recognition of the appellant as an eligible surviving spouse for the purpose of entitlement to VA death benefits are not met. 38 U.S.C.A. § 1304 (West 2002); 38 C.F.R. §§ 3.1(j), 3.5(a)(1), 3.50, 3.54 (2013) 2. There are no remaining questions of fact or law to be decided on the issue of entitlement to service connection for the cause of the Veteran's death. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.50, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. § 5100 to 5107 (West 2002)) are not applicable to the instant claims because both claims turn on a matter of law and not on the underlying facts or development of the facts. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). The United States Court of Appeals for Veterans Claims (Court) found in Manning that the VCAA can have no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on fact. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227 (2000). The Board therefore finds that any possible deficiency in VA's VCAA notice or development action constitutes harmless error. LAW AND ANALYSIS Eligibility as 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. Initially, the Board notes that a review of the claims folder indicates that it is a "rebuilt folder". However, the evidence is against a finding that there is any pertinent information missing from the folder. While the rebuilt claims folder is missing some past rating decisions, it includes the appellant's claims, statements of the case, supplemental statements of the case, copy of a February 2010 marriage certificate between the appellant and the Veteran, copy of the Veteran's May 2010 divorce decree, the Veteran's death certificate, correspondence from the appellant, statements of support from the appellant's family and friends and other evidence pertinent to this case. There is no indication that the appellant has been prejudiced by any missing evidence. In support of her claim, the appellant essentially argues that she lived with and took care of the Veteran from 2002 until his death in August 2010 and that as a result, she should be recognized as the Veteran's eligible surviving spouse for the purpose of receiving VA death benefits Of record is a copy of a marriage certificate dated February [redacted], 2010 between the appellant and the Veteran. Documents associated with the Veteran's claims folder indicate that he had been previously married three times and that his third marriage was officially dissolved on May [redacted], 2010. Of record is a copy of the May [redacted], 2010 divorce decree issued by the State of Oklahoma between the Veteran and R. W. Statements submitted by the appellant's family and friends attest to the fact that the appellant and the Veteran lived together from about 2001 until 2010; that they never separated during that period; and that they were known as husband and wife. The appellant further testified at the July 2012 hearing that the Veteran and R. W. had never actually married. In support of her argument, the appellant submitted a copy of what appears to be an incomplete marriage license from the State of Texas between the Veteran and R. W. Initially, the Board recognizes the appellant's assertion that the Veteran and R. W. were never officially married. While the appellant submitted what appears to be an incomplete marriage license between the Veteran and R.W., the probative evidence reflects that the Veteran was legally married to R.W. and that the marriage was officially dissolved on May [redacted], 2010 by the State of Oklahoma. Thus, there is official documentation issued by the State of Oklahoma that there was a previously existing valid marriage between the Veteran and R.W. As noted above, 38 C.F.R. § 3.1(j) 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." Therefore, the VA does not recognize the appellant' s marriage to the Veteran on February [redacted], 2010 as the Veteran was not officially divorced from his previous marriage until May [redacted], 2010. The Board also recognizes the appellant's arguments that while the Veteran was not officially divorced until May [redacted], 2010, the appellant lived with and cared for the Veteran continuously for 10 years prior to his death and that she should be recognized as his common law wife. While the State of Oklahoma does recognize common law marriages, the establishment of the Veteran's common law marriage cannot be any earlier than May [redacted], 2010, the date of the Veteran's official divorce from his previous marriage to R. W. The Veteran died on August [redacted], 2010 and therefore the appellant's common law marriage to the Veteran occurred less than one year prior to the Veteran's death and she is not eligible for VA death benefits under this basis. In sum, the Board observes that the probative credible evidence of record reflects that the appellant and the Veteran did not enter into a common law marriage until his previous marriage was dissolved on May [redacted], 2010. Thereafter, the Veteran died in August 2012. 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 October 1969. Additionally, no children were born to the couple either during the marriage or before the marriage. Accordingly, the appellant is not an eligible surviving spouse for the purpose of receiving such benefits. 38 U.S.C.A. § 1304; 38 C.F.R. § 3.54. The Board sympathizes with the appellant's position and accepts her genuine testimony that she truly loved the Veteran and that she cared for him faithfully prior to his death. However, the Board is bound by the applicable law and regulations, and is unable to provide a legal remedy that conflicts with the legal requirements set forth under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Cause of Death The appellant also seeks compensation for the cause of the Veteran's death. Dependency and indemnity compensation (DIC) is payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.50 (2013). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). In the above part of this decision, the Board has determined that the appellant is not recognizable as the Veteran's lawful surviving spouse. Therefore the appellant does not have standing to bring a cause-of-death claim, so any such medical-related issues become moot. Accordingly, the claim for entitlement to service connection for the cause of the Veteran's death must be dismissed. See 38 U.S.C.A. § 7104 (West 2002). ORDER The appellant is not an eligible surviving spouse for the purpose of receiving VA death benefits. The claim for compensation benefits for the Veteran's cause of death having been rendered moot, is dismissed. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs