Citation Nr: 1643685 Decision Date: 11/17/16 Archive Date: 12/01/16 DOCKET NO. 14-39 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether the appellant may be recognized as the Veteran's surviving spouse for death benefits purposes. ATTORNEY FOR THE BOARD K. Churchwell, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1971 to October 1971. He died in May 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the September 2011 Notification Letter by the Philadelphia, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA). The record includes a VA Form 21-22 appointing Disabled American Veteran as the representative for the underlying claim. In fact, Disabled American Veteran's submitted an informal hearing brief on the matter in September 2016. However, the VA Form 21-22 was signed by S.S.R. (who appears to be the Veteran's daughter from a prior marriage), and not the appellant. The record does not include another VA Form 21-22 signed by the appellant, who initiated this claim, and therefore, she is considered unrepresented. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND At the outset, the Board notes that the appellant is pursuing these claims pro se, as previously addressed, and as such, VA has a heightened duty to assist her. The Board has an obligation to read the filings of this pro se claimant liberally. See Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); and Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (each emphasizing that pro se filings must be read liberally). The appellant seeks recognition as the Veteran's surviving spouse for the purpose of eligibility for VA death benefits. A surviving spouse for VA purposes is defined as a person whose marriage to the 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 fault of the spouse; and (2) has not remarried or has not since the death of the Veteran lived with another person and held himself/herself out openly to the public to be the spouse of such other person. 38 C.F.R. §§ 3.50 (b), 3.53 (2015). The surviving spouse must be married to the Veteran for a period of one year or more prior to the Veteran's death. See 38 C.F.R. § 3.54 (a)(1), (b)(2), and (c)(1)(ii) (2015). Here, the appellant contends she was common law married to the Veteran as of March 1, 2009 in Gurabo, Puerto Rico. Puerto Rico does not recognize common law marriage. See Ayuso-Morales v. Secretary of Health and Human Services, 677 F.2d 146 (1st Cir. 1982). However, in Colon v. Brown, 9 Vet. App. 104 (1996), the United States Court of Appeals for Veteran's Claims (Court) determined that in cases in which there is an impediment to entering into a common-law marriage, if the appellant was unaware of the impediment, then an otherwise invalid common-law marriage could be deemed valid. The requirement of a marriage ceremony by a jurisdiction that does not recognize common-law marriage constitutes a "legal impediment" to such a marriage for purposes of 38 U.S.C.A. § 103 (a); VAOPGCPREC 58-91 (O.G.C. Prec. 58-91). Therefore, in order for the appellant to be recognized as a surviving spouse, the evidence must support that she was, in fact, considered the spouse of the Veteran for a period of one year or more prior to the Veteran's death and that she was unaware that there was an impediment to entering into a common-law marriage in Puerto Rico, such as a requirement of a marriage ceremony. Before the Board can make a determination as to whether the appellant was considered the Veteran's spouse at the time of his death, additional development is deemed necessary. Notably, the informant on the Veteran's death certificate was his daughter, S.S., and not the appellant. On the death certificate, the Veteran's daughter listed the Veteran as "divorced" and not married. The fact the Veteran's daughter reported the Veteran was divorced and not married runs afoul to the appellant's assertion that she and the Veteran were married and that they represented such to their community. Given the foregoing, and in light of VA's heightened duty to assist in this case, the Board finds that a remand for further inquiry is warranted. Specifically, a field investigation should be conducted to better determine the nature and scope of the appellant's relationship with the Veteran, to include whether the appellant had knowledge that there was an impediment to entering into a common-law marriage. The Veteran's medical records should also be obtained as they could give a glimpse as to how he represented his marital status. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Take appropriate steps to obtain and associate with the claims file VA administrative medical records (i.e., intake forms, next-of-kind notification letters, etcetera) from the VAMCs from which the Veteran received services/treatment for the period of 2009 to 2011. This information is requested for the purpose of identifying how the Veteran reported his marital status (i.e., single, widow, married, divorced), and if and how he presented the appellant to the VA or other medical facilities. Of particular interest are the names of any individuals that the Veteran listed as the point-of-contact or next-of-kin that should be contacted in case of an emergency, or in the case of providing extraordinary care while hospitalized (resuscitation or nonrecuscitation orders). Any negative reply should be properly included in the claims file. 2. Send a letter to the appellant requesting that she identify any relevant outstanding evidence pertaining to her relationship with the Veteran. 3. Thereafter, conduct a field investigation to conclusively determine whether, prior to the Veteran's death, the appellant and Veteran were in a relationship that could be a "deemed valid" common-law marriage. The RO should interview neighbors, family (most notably S.R.R. (his daughter), and/or friends of the Veteran and the appellant to determine whether the couple held themselves out to the community as being married during this time period. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal, including whether the appellant is entitled to benefits under 38 U.S.C.A. § 1310 for service connection for cause of death of benefits and under 38 U.S.C.A. § 1318 for entitlement to dependency and indemnity compensation. If any benefit sought on appeal remains denied, furnish the appellant and her representative, if any, a supplemental statement of the case (SSOC) and afford the appropriate time period for a response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters 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). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).