Citation Nr: 1513794 Decision Date: 03/31/15 Archive Date: 04/03/15 DOCKET NO. 13-00 032A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC), death pension, and/or accrued benefits, based on recognition as the surviving spouse of the Veteran. REPRESENTATION Appellant represented by: John R. Worman, Attorney ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from May 1967 to August 1969. He died in April 2012 and the appellant is his widow. This appeal to the Board of Veterans' Appeals (Board) is from a July 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2015, the appellant's attorney submitted additional argument and evidence in support of the appellant's claim and waived initial RO consideration. In addition to the paper claims file, there are paperless, electronic records stored in Virtual VA that are pertinent to the appeal. FINDINGS OF FACT 1. The Veteran and appellant were legally married in October 2011 and there were no children born either prior to or during their union. 2. The Veteran died in April 2012. 3. The appellant and the Veteran cohabitated for many years prior to their marriage. 4. Common law marriages after March 29, 1943 are not recognized in the state of Nevada where the appellant and Veteran cohabitated prior to the date of their legally recognized marriage in October 2011, and the establishment of a marital relationship for VA purposes prior to that date cannot otherwise be established. CONCLUSION OF LAW The criteria are not met for the recognition of the appellant as the Veteran's surviving spouse for DIC, death benefits, and/or accrued benefits purposes. 38 U.S.C.A. §§ 103, 1102, 1304, 1541 (West 2014); 38 C.F.R. §§ 3.1, 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). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claims; what necessary information or evidence, if any, the claimant is to provide; and what necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2014). In this case it does not appear that the Agency of Original Jurisdiction (AOJ) provided a VCAA notice letter to the appellant informing her of what information and evidence must be submitted to substantiate a claim for DIC, death pension, and/or accrued benefits and to establish herself as surviving spouse, as well as what information and evidence must be provided by the appellant and what information and evidence would be obtained by VA, prior to the July 2012 determination that she was not entitled to recognition as the surviving spouse of the Veteran. The lack of fully compliant VCAA notice in the present case is harmless error. In this regard, the United States Supreme Court held in Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009) that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error in question was harmful by at least providing an explanation as to how the error caused harm. See also 38 U.S.C.A. § 7261(b)(2). Thus, the Board must consider the specific facts of an appellant's case to determine whether she has actually been prejudiced by any notice error. The Court has provided guidance in making this determination. Specifically, in Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), the Court held that lack of prejudicial harm may be shown in three ways: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law. The Court also observed that a finding that any error did not actually affect the outcome of a claim or compromise the "essential fairness of the adjudication" shows that the error in question was not prejudicial. Id. at 116. In this case, the evidence of record reflects that a reasonable person could have been expected to understand the evidence or information necessary to establish entitlement to DIC, death pension, and/or accrued benefits based on recognition as a surviving spouse of the Veteran in light of the correspondence provided to the appellant during the course of her appeal. Both the July 2012 denial letter and the January 2013 statement of the case (SOC) set forth the requirements for being recognized as a surviving spouse. Furthermore, the appellant's attorney offered additional evidence and arguments in January 2015 that demonstrates actual knowledge of these requirements. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim). Similarly, the appellant also submitted statements and evidence that demonstrates her knowledge of the requirements. Based upon the above, the record is clear that the appellant has had actual knowledge of the evidentiary requirements to establish a common law marriage, and that any notice defects have not been prejudicial her. See Mayfield, v. Nicholson, 19 Vet. App. 103, 121-22 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (noting that the claimant's actual knowledge of an evidentiary requirement is sufficient to demonstrate that a notice defect omitting such information was not prejudicial); See Mlechick v. Mansfield, 503 F.3d 1340, 1345 (Fed.Cir.2007) (notice error not prejudicial when claimant has actual knowledge of the evidence needed to substantiate claim). Moreover, the Board finds that all relevant evidence has been obtained with regard to the appellant's claim for recognition as the Veteran's surviving spouse for DIC, death benefits or accrued benefits purposes, and the duty to assist requirements have been satisfied. There is no identified relevant evidence that has not been obtained. Under the circumstances, no further notice or assistance to the appellant is required to fulfill VA's duty to assist her in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Legal Criteria and Analysis The threshold question in this case is whether the appellant is a proper claimant to receive VA death benefits as the surviving spouse of the Veteran. The appellant maintains that for VA benefit purposes she should be recognized as the Veteran's surviving spouse. Governing law provides that benefits may be paid to the surviving spouse of a veteran if certain requirements are met. 38 U.S.C.A. §§ 1304, 1310, 1311, 1541 (West 2014). A "surviving spouse" is defined as a person who was the spouse of a veteran at the time of the veteran's death, and 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 who has not remarried or (in cases not involving remarriage) has not since the death of the veteran lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C.A. § 101(3) (West 2014); 38 C.F.R. § 3.50 (2014). The surviving spouse of a qualified veteran is eligible to receive death benefits (i.e., DIC, compensation, accrued benefits, or pension) if the surviving spouse was married to the veteran for one year or more. 38 C.F.R. § 3.54(a). To qualify as a surviving spouse, the person's marriage to the veteran must meet the requirements of either 38 C.F.R. § 3.1(j) or 38 C.F.R. § 3.52. 38 C.F.R. § 3.50(b). Under 38 C.F.R. § 3.1(j), a marriage is defined as "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); see 38 U.S.C. § 103(c). In VAOPGCPREC 58-91, the General Counsel of VA has held that lack of residence in a jurisdiction recognizing common law marriage 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. Under 38 C.F.R. § 3.52, where an attempted marriage of a claimant to the Veteran was invalid by reason of a legal impediment, the marriage will nevertheless be deemed valid if: (a) The marriage occurred 1 year or more before the veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage (see § 3.54(d)), 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 marriage to the date of his or her death as outlined in § 3.53, and (d) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the veteran's death. See also 38 U.S.C.A. § 103(a). A marriage will be deemed valid if the appellant's signed statement that he or she had no knowledge of an impediment to marriage to the Veteran is accepted, in the absence of information to the contrary, as proof of that fact. 38 C.F.R. § 3.205(c). The requirement of a formal marriage ceremony by a jurisdiction that does not recognize common law marriage, such as Nevada, constitutes a "legal impediment" to that marriage under 38 C.F.R. § 3.52. See Lamour v. Peake, 544 F.3d 1317, 1322 (Fed.Cir. 2008) (citing VA Gen. Coun. Prec. 58-91 (June 17, 1991)). "The determination of a claimant's knowledge of a legal impediment is viewed in terms of 'what the appellant's state of mind was at the time that the invalid marriage was contracted.'" Id. at 1323 (quoting Dedicatoria v. Brown, 8 Vet.App. 441, 444 (1995)). As applied to the appellant in this case, if she intended to enter into a common law marriage with the Veteran without, at that time, knowledge of the fact that Nevada law does not recognize common law marriage, the marriage could be "deemed valid" for VA purposes. 38 U.S.C.A. § 103(a); 38 C.F.R. § 3.52. In regard to continuous cohabitation, the provisions of 38 C.F.R. § 3.53 indicate that there must be continuous cohabitation from the date of marriage to the date of death of the veteran except where the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. Temporary separations which ordinarily occur will not break the continuity of the cohabitation. The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, businesses, or any other reason which did not show intent on the part of the surviving spouse to desert the veteran, the continuity of the cohabitation will not be considered as having been broken. When a surviving spouse submits proof of marriage and meets the requirements for a deemed valid marriage, VA will accept the surviving spouse's statement that she had no knowledge of an impediment to marriage, absent information to the contrary. 38 C.F.R. § 3.205(c). Since the Veteran and appellant were legally married for less than 1 year prior to his death, she does not meet the definition of surviving spouse under 38 C.F.R. § 3.50; therefore, she must establish that a common law marriage existed prior to that time. The record reflects that the Veteran and the appellant were legal residents of Nevada during the purported establishment of a common law marriage. Thus, the laws of Nevada control in determining whether a common law marriage existed prior to their legal marriage in October 2011. See 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). Under Nevada law (NRS 122.010), common law marriage after March 29, 1943 does not constitute a marriage. A valid marriage is a civil contract to which the consent of the parties capable in law of contracting is essential. Consent alone will not constitute marriage; it must be followed by solemnization as authorized and provided this chapter. The provisions of subsection 1 requiring solemnization shall not invalidate any marriage contract in effect prior to March 29, 1943, to which the consent only of the parties capable in law of contracting the contract was essential. [1:33:1861; A 1943, 279; 1943 NCL § 4050]. Pursuant to NRS 122.030, with respect to any marriage solemnized on or after January 1, 1971, the original certificate and records of marriage made by the judge, justice, minister or other church or religious official authorized to solemnize a marriage, notary public, commissioner of civil marriages or deputy commissioner of civil marriages, as prescribed in this chapter, and the record thereof by the county recorder or the county clerk, as the case may be, or a copy or abstract of the record certified by the county recorder or the county clerk, as the case may be, must be received in all courts and places as presumptive evidence of the fact of the marriage. [14:33:1861; B § 207; BH § 483; C § 494; RL § 2350; NCL § 4062]-(NRS A 1969, 763; 1991, 69; 2007, 887; 2009, 723; 2013, 1186). Since the appellant's purported common law marriage began after March 29, 1943, it was not recognized as a legal marriage, so the a "valid marriage" must therefore be established under pertinent VA regulations in order for her to be recognized as a surviving spouse eligible to received survivor benefits. The appellant asserts that she met the Veteran in 1993 and at that time they had both been married and divorced with grown children. At that time they were both ready to settle down into a relationship and in 1995 they moved in together. She stated that they lived together as a married couple continuously until he died in 2012. They shared families, holidays, grandchildren and vacations together. Although they were legally married in October 2011, she felt as though they had been married for the entire time and their legal marriage changed nothing; it was just a piece of paper. The Veteran was diagnosed with diabetes mellitus in 1996 and gradually over time his health deteriorated to the point where the Veteran ultimately became dependent on her for his day to day care. After they married, his health progressively worsened and he died in hospice care in April 2012. See the March 2013 and January 2015 statements. In support of her claim, she submitted photographs of her and the Veteran together, dates and addresses of where they lived together from June 1995 through November 2011, two lay statements, household bills in both their names, and a car title in both their names. The unsigned letter from D. F, the Veteran's sister, states the appellant worked with and cared for the Veteran for 17 years. The appellant was acknowledged by Nellis Air Base Hospital as Mrs. [redacted] and had the decision-making power that included his medical care and meeting with case managers and doctors. The appellant has always been the Veteran's wife even though it was not legal until October 2011. A letter from G. Y, the appellant's friend, states the two have been friends for 32 years and for the last 20 years she has known the appellant to be with the Veteran. After a couple of years the appellant and Veteran moved in together and she saw them many times together over the years in their shared home. For a short period, the two had lived with her. During the last 17 years she had known them as husband and wife and saw them together at family functions, during holidays, and for leisure activities. She had not known them to live apart from each other at any period in those 17 years. Based on the evidence of record, the appellant is not shown to have had what amounts to a "valid marriage" for VA purposes. One of the requirements for establishing a valid marriage is that the appellant entered into the marriage without knowledge of the impediment. A marriage will be deemed valid if the appellant's signed statement that she had no knowledge of an impediment to marriage to the Veteran is accepted, in the absence of information to the contrary, as proof of that fact. 38 C.F.R. § 3.205(c). The determination of a claimant's knowledge of a legal impediment is viewed in terms of 'what the appellant's state of mind was at the time that the invalid marriage was contracted.'" Id. at 1323 (quoting Dedicatoria v. Brown, 8 Vet.App. 441, 444 (1995)). As applied to the appellant in this case, if she intended to enter into a common law marriage with the Veteran without, at that time, knowledge of the fact that Nevada law does not recognize common law marriage, the marriage could be "deemed valid" for VA purposes. 38 U.S.C.A. § 103(a); 38 C.F.R. § 3.52. The appellant has not submitted a statement declaring she had no knowledge of an impediment to marriage to the Veteran. Regardless, the evidence of record contradicts the idea that she was ignorant of an impediment to her purported common law marriage and that she believed she had even entered a marriage prior to the legal marriage in October 2011. According to her statements, she and the Veteran moved in together in 1995 and that she felt married to him the entire time; to her the marriage certificate was only a piece of paper and changed nothing in their relationship. While she cohabitated with, cared for, and shared her life with the Veteran, it is clear from her statements that she never believed she had entered into a common law marriage when they began living together in 1995. The appellant never stated that she believed they were actually married, instead she only stated that she felt married. For the purposes of establishing a common law marriage merely feeling married to someone is very different from having a belief that you actually entered into a marriage. Furthermore, if the marriage certificate changed nothing and was only a piece of paper, as she states, then logically there would have be no reason to legally marry after living together for 16 years if she truly believed she had already entered into a legal common law marriage. In essence, if she believed she was in a valid common law marriage and was not aware that Nevada did not recognize it, there would have been no need to legalize it, particularly after so many years. Just because two people live together in a committed relationship does not mean the two parties believe they are married. There is also evidence the Veteran did not recognize their relationship as a common law marriage. Medical records in March 1996 show the appellant was identified by the Veteran as his friend. In a claim he filed in August 2001, he only reported he was divorced in 1985; he did not state he was entered into a common law marriage. And when the Veteran was awarded disability benefits in an October 2002 rating decision and was paid as a single Veteran with no dependents, he did not attempt to have the appellant added as a dependent spouse. The Board has also considered whether the criteria are met for establishing a marriage under 38 C.F.R. § 38 C.F.R. § 38 C.F.R. § 3.205(a)(6) (2014), however, since it only relates to jurisdictions where marriages other than by ceremony are recognized the regulation does not apply to the current appeal since it. While it is apparent from the statements of record that the appellant loved the Veteran and they lived together and shared their lives for many years, it is insufficient to establish that a valid marriage existed. Cohabitation in and of itself cannot be considered an attempted marriage and the fact that the parties, after cohabitating for years, did not take active steps to have a validly recognized marriage in the state of Nevada until October 2011, does not reflect that the Veteran and appellant formed, or intended to form, a marriage prior to that time. The Board is bound by the law and regulations in effect. In the absence of authorizing statutory or regulatory authority, the Board may not award payment of benefits. See Zimick v. West, 11 Vet. App. 45, 50 (1998) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 424 (1990) (payment of money from the [Federal] Treasury" must be authorized by a statute")). While the Board is sympathetic to the appellant's circumstances, including time and energy expended in caring for the Veteran in the time leading up to his death, there is no legal basis on which to provide the appellant equitable relief. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The appellant is not recognized as the surviving spouse of the Veteran for VA benefit purposes, to include entitlement to DIC, death pension, and accrued benefits, and her claim is denied. ORDER Entitlement to DIC, death pension, and/or accrued benefits based on recognition as the surviving spouse of the Veteran is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs