Citation Nr: 1512517 Decision Date: 03/24/15 Archive Date: 04/01/15 DOCKET NO. 10-17 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to recognition of the appellant as the surviving spouse of the Veteran for the purpose of receiving VA Dependency and Indemnity Compensation (DIC) benefits. 2. Entitlement to DIC benefits based on service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESSES AT HEARING ON APPEAL Appellant, Appellant's son, P.H. ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION Appellant is the surviving spouse of a veteran, hereinafter referred to as the Veteran, who had active service from March 1967 to March 1971. The Veteran died in December 2007. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which, in pertinent part, denied service connection for the cause of the Veteran's death on the basis that a valid common law marriage did not exist between the appellant and the Veteran and that the evidence failed to show that the Veteran's death was related to his active service or service-connected disabilities. A claim for DIC benefits based on service connection for the cause of the Veteran's death was received in January 2008. In November 2013, the Board found that the appellant was not entitled to recognition as the surviving spouse of the Veteran for purposes of VA benefits. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2014, the Court vacated the Board's November 2013 decision pursuant to a Joint Motion for Remand. The parties to the Joint Motion for Remand requested that the Court vacate the Board's decision on the basis of agreement that the Board did not adequately consider VA medical records, dated from April to May 2005, indicating that the Veteran held himself out to the public as being married. As discussed in detail below, the Board finds that the appellant is eligible under 38 C.F.R. § 3.55(a)(3) for recognition as the surviving spouse of the Veteran for purposes of receiving DIC benefits. Such a claim was previously denied by the RO based on the ineligibility of the appellant and that the evidence failed to show that the Veteran's death was related to his active service or service-connected disabilities. The appellant filed a timely notice of disagreement in December 2009, a statement of the case was issued in January 2010, and the appellant perfected the appeal (through submission of a substantive appeal) in March 2010. As such, the issue entitlement to DIC benefits based on service connection for the cause of the Veteran's death is properly in appellate status before the Board. The Board has recharacterized the issues on appeal to include entitlement to DIC benefits. Pursuant to the April 2012 Board remand instructions, in July 2012, the appellant testified at a Board videoconference hearing at the local RO in Wichita, Kansas, before a Veterans Law Judge sitting in Washington, DC. A transcript of the hearing is of record. The Veterans Law Judge who held the April 2012 hearing is no longer employed by the Board. In a February 2015 written statement, the representative indicated that the appellant did not want another Board hearing; therefore, the Board may proceed with adjudication of the issue on appeal, which includes consideration of the appellant's hearing testimony. The Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. The issue of entitlement to DIC benefits based on service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran died on December [redacted], 2007. 2. At the time of the Veteran's death, the appellant and the Veteran were in a valid common law marriage for more than one year. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran's surviving spouse for the purpose of VA death benefits have been met. 38 U.S.C.A. §§ 103, 1102, 1304, 1310, 1311, 1541 (West 2014); 38 C.F.R. §§ 3.1(j), 3.50, 3.53, 3.54, 3.205 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Resolution of the question of recognition as spouse of the Veteran turns on interpretation of the applicable laws and regulations pertaining to entitlement to VA death benefits. As the issue of recognition as a surviving spouse of the Veteran turns on a matter of law, further assistance, such as the further procurement of records, would not assist the appellant with the appealed issue. Consequently, no further notice or development under the VCAA is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). Recognition as Surviving Spouse DIC and death pension benefits may be paid to the surviving spouse of a veteran in certain circumstances. 38 U.S.C.A. §§ 1310, 1541(a). Except as provided in 38 C.F.R. § 3.52, the term "surviving spouse" means a person whose marriage to a veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the veteran at the time of the veteran's death and: (1) who 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 (2) except as provided in 38 C.F.R. § 3.55, has not remarried or has not since the death of the veteran and, after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50(b) (2014). VA death benefits may be paid to a surviving spouse who was married to a veteran: (1) one year or more prior to the 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 (West 2014); 38 C.F.R. § 3.54 (2014). One claiming to be the spouse of a veteran has the burden to come forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The threshold question that must be addressed in any claim for VA benefits is whether the person seeking the benefit is a proper claimant for the benefit sought. If the appellant is not established as a proper claimant, the claim can proceed no further. The appellant has the burden to establish his or her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). The appellant contends that she should be recognized as the Veteran's surviving spouse for purposes of entitlement to DIC benefits. See also February 2015 written statement by the representative. A certificate of death shows that the Veteran died on December [redacted], 2007. The appellant and the Veteran lived together continuously for at least one year prior to his death. There further is no indication that the appellant married, lived with another person, or held herself out openly to the public to be the spouse of another person. Rather the only issue is whether the appellant and the Veteran were married prior to his death. The record shows that the appellant and the Veteran were not legally married at the time of his death. The appellant contends, however, that she and the Veteran were into a common law marriage for over 20 years prior to the Veteran's death. See January 2008 DIC claim, March 2010 substantive appeal (on a VA Form 9), July 2012 Board hearing transcript. In the January 2008 claim for DIC, the appellant reported that she and the Veteran entered into a common law marriage in 1987. Marriage is, for VA benefits purposes, a marriage valid under the law of the place where the parties resided at the time of the marriage, or the laws of the place where the parties resided when the right to benefits accrued. 38 C.F.R. § 3.1(j). Here, the record shows that the Veteran and the appellant resided in Kansas, where he died in December 2007. Accordingly, the Board must look to the laws of the State of Kansas to determine whether the appellant and the Veteran had entered into a valid common law marriage for at least one year prior to his death. Common law marriage is recognized in Kansas, where the appellant and the Veteran resided prior to his death. To establish a common-law marriage in Kansas, a claimant 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). After a review of all the evidence, the Board finds that, at the time of the Veteran's death, the appellant and the Veteran were in a valid common law marriage in the State of Kansas for more than one year prior to the Veteran's death. The appellant has submitted multiple statements from family members, friends, and coworkers reflecting that, for 22 years prior to the Veteran's death, she and the Veteran were generally known as husband and wife, never denied being married, and cohabitated. See generally supporting statements regarding marriage received by VA in September 2008. At the July 2012 Board hearing, P.H., a friend of the appellant, testified that the appellant and the Veteran were a committed couple who introduced themselves as husband and wife. The appellant's son testified that the Veteran was his stepfather. In a January 2004 claim, the Veteran indicated that he had never been legally married. A March 2004 VA treatment records notes that the Veteran reported that he had been in the same relationship for 20 years and that the reason he was not legally married was that "if it [is] not broke do not fix it." In VA treatment records, dated from April to May 2005, the Veteran repeatedly referred to the appellant as his "wife" and reported that he was "married" and "lives with his wife." At an April 2005 VA examination, in connection with his claim for service connection for diabetes mellitus type II, the Veteran referred to the appellant as his "wife." On a 1989 tax return, the Veteran and the appellant indicated that they were "married filing jointly." A quit claim deed signed in September 2005 shows that the Veteran and Appellant acquired the property as joint tenants. While they did not acquire the property as tenants in the entirety (a legal designation given to joint tenants who are married at the time of purchase), joint tenants, like tenants in the entirety, possess the right of survivorship (at the death of one tenants, the remainder of the property automatically transfers to the survivor). 2 Tiffany Real Prop. § 419 (3d ed.). The December 2007 death certificate lists the appellant as the Veteran's "common-law spouse." Based on the above, the Board finds that, prior to the Veteran's death, both the appellant and the Veteran had the capacity to marry, there was a marriage agreement between the parties, and they held each other out to the public as husband and wife. The Board finds that, at the time of the Veteran's death, the appellant and the Veteran were in a valid common law marriage in the State of Kansas for more than one year and the criteria for recognition as a surviving spouse for the purpose of receiving VA death benefits have been met. 38 C.F.R. § 3.52. ORDER Recognition of the appellant as the Veteran's surviving spouse for the purpose of VA death benefits is granted. REMAND DIC A VA medical opinion has not yet been obtained with respect to the issue of service connection for the cause of the Veteran's death. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the general duty to assist provision, 38 U.S.C.A. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C.A. § 5103A(d), is applicable to claims for service connection for the cause of a veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Such assistance is required whenever a medical opinion is necessary to substantiate the claim, and VA is excused from providing such assistance only when no reasonable possibility exists that such assistance would aid in substantiating the claim. Wood, 520 F.3d at 1348. At the time of the Veteran's death, service connection had been established for coronary artery disease, diabetes mellitus type II, peripheral neuropathy of the bilateral upper and lower extremities, and erectile dysfunction. The December 2007 death certificate lists the cause of the Veteran's death as "natural causes." Based on the above, the Board finds that a VA medical opinion is necessary to assist in determining whether the Veteran's service-connected disabilities, including coronary artery disease and diabetes mellitus type II, contributed substantially or materially to cause death, or aided or lent assistance to the production of death. Wood at 1347; DeLaRosa, 515 F.3d at 1322. Accordingly, the issue of entitlement to DIC benefits based on service connection for the cause of the Veteran's death is REMANDED for the following action: 1. Refer the case to an appropriate VA examiner for medical opinion(s) to address the claimed cause of the Veteran's death. The relevant documents in the claims folder should be made available to the examiner for review. The VA examiner should offer the following opinions with supporting rationale: (a) Is it at least as likely as not (50 percent or greater probability) that any service-connected disabilities, to include coronary artery disease and diabetes mellitus type II, were the immediate or underlying cause of the Veteran's death or were otherwise etiologically related to the cause of the Veteran's death? (b) Is it at least as likely as not (50 percent or greater probability) that any service-connected disabilities, to include coronary artery disease and diabetes mellitus type II, contributed substantially and materially to the cause of the Veteran's death? (c) Is it at least as likely as not (50 percent or greater probability) that any service-connected disabilities, to include coronary artery disease and diabetes mellitus type II, were so debilitating that they accelerated the Veteran's death? 2. Then, readjudicate the appeal. If the issue on appeal remains denied, provide the appellant and the representative with a supplemental statement of the case and allow an appropriate time for response. 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 2014). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs