Citation Nr: 1510228 Decision Date: 03/11/15 Archive Date: 03/24/15 DOCKET NO. 07-19 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to recognition of L. as the Veteran's spouse for the period from June 15, 2005, to September 2, 2005. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and Spouse (D.) ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 decision by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2010, the Veteran testified at a Board hearing before the undersigned via video conference from the RO. In a September 2010 decision, the Board determined that prior February 1995 and April 2003 RO determinations which denied the Veteran's claim for entitlement to recognition of L. as his spouse were final; and that currently, since there was no basis for appellate review of the issue of entitlement to retroactive payment for additional compensation for a dependent spouse for the period from October 28, 1994, to June 15, 2005, the appeal as to that matter was legally precluded. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Board remanded the matter of entitlement to recognition of L. as the Veteran's spouse for the period from June 15, 2005, to September 2, 2005. The issue of entitlement to recognition of D. as the Veteran's spouse effective from April 6, 2006, has been raised by the record, as noted in the Board's September 2010 remand/decision, but still has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. In March 1990 the RO received a copy of a certificate of marriage between the Veteran and P. who married in April 1975; they later engaged in a legal divorce in April 1992. 2. The Veteran and P. reconciled shortly after their April 1992 divorce and entered into a common-law marriage which was recognized in their State of residence, Oklahoma. 3. A November 1993 VA administrative determination found a valid common-law marriage could be established between the Veteran and P. 4. Although the Veteran and P. separated thereafter, there is no valid divorce decree showing dissolution of that common-law marriage. 5. In December 1994 the Veteran was notified that his benefit payments were being adjusted to remove P. from his award as a dependent based on his report that they were not residing together; he was also notified that to establish L. as his spouse he must provide a copy of the legal document terminating his common-law relationship with P.; and he was subsequently notified several times that he needed to provide a copy of the court document terminating his common-law marriage to P. in order to show that they were divorced. 6. The Veteran has not provided a certified copy or certified abstract of final decree of divorce or annulment nor has VA been able to obtain such documentation. CONCLUSION OF LAW Entitlement to recognition of L. as the Veteran's spouse for the period from June 15, 2005, to September 2, 2005 is not warranted. 38 U.S.C.A. §§ 101, 5107 (West 2014); 38 C.F.R. §§ 3.1, 3.52, 3.205, 3.206 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in July and October 2005 letters prior to the initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran has not alleged any notice deficiency during the adjudication of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. The Board remanded this case for additional evidence. The Veteran did not provide any further evidence and despite efforts, VA was unable to obtain any further evidence regarding a purported divorce decree, as discussed below. VA's duty to assist with respect to obtaining relevant records has been met. Finally, the Veteran testified at RO and Board hearings. The hearings were adequate as the DRO and Veterans Law Judge who conducted the hearings explained the issue and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence should be submitted to substantiate the claim. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Recognition of Spouse The record reflects that in March 1990, the RO received a copy of a certificate of marriage between the Veteran and P. dated in April 1975. In VA correspondence dated in December 1991, the Veteran was notified that his disability compensation award had been amended and that he was receiving additional benefits for his spouse and children. In March 1993, the Veteran reported that he was divorced from P. in 1992. A copy of an April 1992 divorce decree shows the marriage between the Veteran and P. was dissolved. An October 1, 1993 VA Report of Contact documented a telephone contact with the Veteran in which he reported he and his spouse had reconciled two months after their divorce. It was noted that the Veteran was informed that he could either obtain a decree setting aside the divorce, establish a common-law marriage, or get remarried, and that he stated he did not plan to re-marry her. In VA correspondence dated October 5, 1993, the Veteran was requested to provide additional information as to his relationship with his former spouse. Documents dated as signed on October 9, 1993, including VA Forms 21-0516-1, 21-4138, 21-4170, 21-4171, reported that the Veteran and P. had reconciled and had been living together as husband and wife since August 1992. The October 1993 documents include signatures for the Veteran and his former spouse P., including on VA Forms 21-4171, Statements of Marital Relationship. The October 1993 VA Forms 21-4171, Supporting Statements Regarding Marriage, were signed by B.A. and B.L., the children of the Veteran and P. In a VA Form 21-4138 dated November 15, 1993, the Veteran reported that his ex-spouse (P.) did not live with him. He stated they had tried to get back together a few times, but were still having problems and things were not working out. He reported she was not living in his home and that they did not consider themselves to be in a common-law marriage because they did not live together at all times. In a November 15, 1993, VA Form 21-0516-1 the Veteran reported he was not married. However, simultaneously, a November 15, 1993 VA administrative determination found a valid common-law marriage could be established between the Veteran and P. In VA correspondence dated August 1994 the Veteran was notified of an award of service-connected disability compensation benefits at the 100 percent rate. He was also notified that his monthly rate included an additional allowance for his spouse (P.) and B.A. (child). In a handwritten note submitted to the RO dated October 17, 1994, P. requested that she be removed from the Veteran's benefits. She provided a copy of their April 1992 divorce decree. VA records dated in December 1994 show the additional benefit payments for P. were terminated. In a VA Form 21-686C received by the RO in December 1994, the Veteran reported that in October 1994, he had married L. It was noted that L. was divorced from J. in August 1986. However, at this juncture, there was no valid documentation of the divorce between the Veteran and P. regarding their common-law union, even if they were no longer residing together and were thereby separated with regard to the common-law marriage. In VA correspondence dated in December 1994 the Veteran was notified that his benefit payments were being adjusted to remove P. from his award as a dependent effective November 15, 1993, the date he notified VA of their separation. He was also notified that to establish L. as his spouse he must provide a copy of the legal document terminating his common-law relationship with P. dated after the date they began living together again. In correspondence dated December 8, 1994, the Veteran reported that P. was living at his residence until October 1, 1994. In a January 1995 affidavit the Veteran reported that he and P. had not lived together since October 1, 1994. In VA correspondence dated February 13, 1995, the Veteran was notified that his claim for an additional allowance for L. had been denied. He was informed that his claim was being denied because he failed to provide a copy of the court document terminating his common-law marriage to P. in response to the request in December 1994. He was also notified that additional benefit payments could be established from the date of his claim if the requested evidence was received before December 5, 1995, but that if it was received after that date the benefits could not be paid prior to the date of the receipt of the evidence. He was notified of his appellate rights, but did not appeal and that decision became final. 38 U.S.C.A. § 7105. A December 1995 VA Report of Contact noted that L. reported that she and the Veteran had lived together since April 1992. She stated that the Veteran had not lived with P. at any time since their divorce in April 1992, but that P. had been living in the Veteran's house until she was evicted from it. It appears this occurred either during or soon after December 1994. In VA correspondence dated in January 1996, the Veteran was notified that since P. was established as his common-law spouse in August 1992, a copy of the court document terminating this second marriage to P. was required. He was advised that he could establish his marriage to L. by obtaining a divorce from P. even if her present location was unknown and either re-marrying L. or establishing a common-law marriage with her. In correspondence dated April 25, 2003, the Veteran was notified, in essence, that the previous decision denying entitlement to additional benefits for L. could not be reopened. It was noted that evidence was required demonstrating that his common-law marriage to P. had been terminated. He was notified of his appellate rights, but did not appeal and that decision became final. 38 U.S.C.A. § 7105. At this point, the Board notes that the Board previously resolved that the February 1995 and April 2003 determinations were final and that there was no basis for appellate review of the issue of entitlement to retroactive payment for additional compensation for a dependent spouse for the period from October 28, 1994, to June 15, 2005. In addition, the Board addressed the Veteran's assertions that Oklahoma law would have prevented a common-law marriage in 1992 per Marshall v. State, 537 P.2d 423 (Okl.Cr. 1975), cited in support of his claim, as well as the apparent applicable state law as to common-law marriages. See 43 Ok.St.Ann. §§ 1, 4 (2010); see also Standefer v. Standefer, 26 P.3d 104 (Okla. 2001), Sanders v. Sanders, 948 P.2d 719 (Okla.Civ.App. Div. 3, 1997). However, Oklahoma recognized common-law marriages when the common-law marriage of the Veteran and P. occurred. The Board previously noted that the Veteran's statements during a telephone conversation with a VA employee on October 1, 1993, and his acceptance of an additional allowance for a spouse after VA notice of an August 1994 award of increased service-connected disability compensation benefit, were factually inconsistent with his subsequent statements as to his relationship with P. at that time. On June 15, 2005, the Veteran initiated a new claim to recognize L. as his spouse for VA compensation purposes. In conjunction with his claim, the Veteran asserted that he had not established a common-law marriage in August 1992 with P. He testified in September 2008 that he had allowed P. to stay in his home when she came to visit their children on weekends, but that he always left the home to stay with L. when P. was in the house and that they never lived together. He also asserted that she had forged his signature on the documents provided to VA dated October 9, 1993, indicating that they had reconciled and had been living together since August 1992. The Veteran subsequently reiterated his claims in testimony before the Board in July 2010 and also asserted that Oklahoma law would have prevented his common-law marriage to P. in August 1992. VA records show that on March 25, 2009, the RO received a decree of common law divorce dated October 17, 1994, granting a divorce to P. to become absolute for the purpose of the purpose of remarriage at the expiration of six months. The document was signed and approved as to form by the Veteran and P., but there is no indication it was signed by the judge (that signature line is blank) nor that it was appropriately filed in the local court. The record also shows that documents were received by the RO showing that a decree of dissolution of marriage between the Veteran and L. was filed on September 2, 2005, and that this document reported they had been separated and living apart since May 1, 2005. A marriage certificate was subsequently received by the RO demonstrating that the Veteran married D. in April 2009. 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). Marriage is established by one of the following types of evidence: (1) Copy or abstract of the public record of marriage, or a copy of the church record of marriage, containing sufficient data to identify the parties, the date and place of marriage, and the number of prior marriages if shown on the official record. (2) Official report from service department as to marriage which occurred while the veteran was in service. (3) The affidavit of the clergyman or magistrate who officiated. (4) The original certificate of marriage, if VA is satisfied that it is genuine and free from alteration. (5) The affidavits or certified statements of two or more eyewitnesses to the ceremony. (6) In jurisdictions where marriages other than by ceremony are recognized 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. (7) 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 38 C.F.R. § 3.205 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). Where an attempted marriage is invalid by reason of legal impediment, VA law allows 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. As noted, in this case, the State of Oklahoma recognized common-law marriages when the Veteran and P. began residing together again shortly after their divorce in April 1992. Contemporaneous evidence reflected that the Veteran and P. had reconciled, by their own admission via their signatures and by the signatures of their children. Although the Veteran presently asserts that these documents were falsified, the Board does not find that contention credible particularly since the October 1993 Report of Contact also reflected a report by the Veteran of the reconciliation between him and P. Under Oklahoma law, "[a] common-law marriage requires competent parties, who enter the relationship by mutual agreement, exclusive of all others, consummating arrangement [sic] by cohabitation and open assumption of marital duties, and such relationship must be established by evidence that is clear and convincing." Moran v. Apfel, 198 F.3d 258, 1999 WL 999709 (C.A.10 (Okla.)) (citing Mueggenborg v. Walling, 836 P.2d 112, 113 (Okla. 1992). Oklahoma 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 United States Court of Appeals for Veterans Claims (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 v. Shinseki, 25 Vet. App. 178, 186 (2012) (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). As noted, 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 whether the parties resided when the right to benefits accrued. As such, Oklahoma's "clear and convincing" standard of proof is applicable. In this case, the Veteran and P. were legally married in 1975. They legally divorced in April 1992. However, the evidence dated around the time of the divorce showed that they reconciled shortly thereafter and numerous documents were received, as noted, and as credibly signed by the Veteran, P., and their children, indicating that they were living as a married couple. The Veteran subsequently indicated that they were not "married" and had stopped living together. However, an unappealed November 1993 VA administrative determination found a valid common-law marriage could be established between the Veteran and P. The Veteran was then notified that he had been awarded additional benefits for P., as his dependent and was paid those benefits (until after their separation was verified). The Veteran subsequently reported that P. resided with him until October 1, 1994, despite his early report that they had ceased living together before that date. Significantly, the Veteran later provided a decree of common law divorce dated October 17, 1994, in the State of Oklahoma, District Court of McCurtain County, which will be addressed further below. Since the Veteran, P., and their children acknowledged that the Veteran and P. were living together as man and wife after their April 1992 divorce, and since the Veteran specifically acknowledged that this reconciliation was a "common-law marriage" when he provided documentation purporting to show a "common-law divorce" with reference to that union, the Board finds that the clear and convincing standard is met. The Veteran was aware that they entered into a common-law marriage. He was also aware that common-law marriage was permitted despite his current contentions to the contrary. Thus, subsequent to the April 1992 legal divorce, the Veteran and P. entered into a common-law marriage. The Board previously remanded this case because although the Veteran had submitted evidence showing that he and P. ceased living together (well prior to June 15, 2005, the commencement date of this claim), there was insufficient evidence to establish that a common-law divorce had ever occurred. The Board noted that the decree of common-law divorce dated October 17, 1994, in the State of Oklahoma, District Court of McCurtain County, did not include a signature by the judge and did not indicate the order was appropriately filed in the local court. Thus, the Board requested that appropriate action be taken to assist the Veteran in obtaining any records pertinent to an October 1994 termination of a common-law marriage to P. maintained by the State of Oklahoma, District Court of McCurtain County. The Veteran did not provide any further information. In December 2011, the RO requested a copy of the public record that terminated the marriage between the Veteran and P. The Veteran was also asked for any alternate source that VA could use to obtain this public record. The Veteran again did not reply or provide any pertinent information. The RO then contacted the court clerk's office via telephone call regarding a common-law divorce between the Veteran and P. The RO also attempted to obtain this information from the "On Demand Court Records" internet website. However, all attempts were futile. Proof of divorce or termination of a prior marriage can be established by a certified copy or certified abstract of final decree of divorce or annulment specifically reciting the effects of the decree. 38 C.F.R. § 3.206(b). The validity of a divorce decree will be questioned by VA only when such validity is put in issue by a party or a person whose interest in a claim for benefits would be affected thereby. 38 C.F.R. § 3.206. In this case, there is no certified copy or certified abstract of final decree of divorce or annulment and the validity of the divorce document is at issue in this case. Further, the Veteran was not only aware that he had entered into a common-law marriage with P. after their legal divorce, he was also aware that there was no valid common-law divorce via numerous VA correspondence. Thus, he was also thereby aware of an impediment to a valid marriage to L. which therefore cannot in turn be "deemed valid." For instance, the November 1993 VA administrative determination notified the Veteran that he had a valid common-law marriage to P. (following their legal divorce in April 1992). In December 1994 VA correspondence the Veteran was notified that to establish L. as his spouse he must provide a copy of the legal document terminating his common-law relationship with P. In February 1995 VA correspondence, the Veteran was notified that he had failed to provide a copy of the court document terminating his common-law marriage to P. In January 1996 VA correspondence, the Veteran was notified that since P. was established as his common-law spouse in August 1992, a copy of the court document terminating this second marriage to P. was required. In April 2003 VA correspondence, the Veteran was notified that evidence was required demonstrating that his common-law marriage to P. had been terminated. Since there is no valid proof of divorce terminating the common-law marriage between the Veteran and P., and since the Veteran was aware of that impediment to another marriage, L. cannot be recognized as the Veteran's spouse for the period from June 15, 2005, to September 2, 2005. ORDER Entitlement to recognition of L. as the Veteran's spouse for the period from June 15, 2005, to September 2, 2005, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs