Citation Nr: 1753084 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 08-25 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether the Appellant may be recognized as the surviving spouse of the Veteran for purposes of VA death benefits. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, I.R., and R.L. ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1967. He died in October 2005. The Appellant seeks VA death benefits as the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from an April 2006 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Appellant was afforded a Central Office hearing before the Board in August 2012. A transcript of the proceeding is associated with the record. In September 2012, the Board remanded the appeal to the Agency of Original Jurisdiction to obtain outstanding records from the Social Security Administration (SSA). In December 2012, the AOJ was informed by the SSA that the pertinent records were destroyed. Based upon the forgoing, there has been substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) FINDINGS OF FACT 1. The Veteran and the Appellant were married for less than one year prior to the Veteran's death. 2. The requirements for a common law marriage in the state of Ohio are not met, as the evidence does not show the establishment of such a relationship prior to October 10, 1991. CONCLUSION OF LAW The Appellant is not entitled to recognition as the surviving spouse of the Veteran for purpose of VA death benefits. 38 U.S.C. §§ 101(3), 103, 1541(f) (2012); 38 C.F.R. §§ 3.1(j), 3.50, 3.54 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist With respect to the Appellant's claim, she has not alleged that VA has not fulfilled its duty notify or assist in the development of her claim. Moreover, review of the record fails to reveal any deficiency with respect to either the duty to notify or assist. Therefore, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017); see Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Legal Criteria Marriage means 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). "Spouse" means a person whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j). 38 C.F.R. § 3.50(a). Surviving spouse. Except as provided in 38 C.F.R. § 3.52 (2017), "surviving spouse" means 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 the fault of the spouse; and (2) Except as provided in 38 C.F.R. § 3.55 (2017), has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex 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). Proof of marriage. 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 the Department of Veterans Affairs 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) (2017). Valid marriage. 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. Where necessary to a determination because of conflicting information or protest by a party having an interest therein, proof of termination of a prior marriage will be shown by proof of death, or a certified copy or a certified abstract of final decree of divorce or annulment specifically reciting the effects of the decree. 38 C.F.R. § 3.205(b). Under 38 U.S.C. § 103(c), "state law, including state law evidentiary burdens, must be applied in determining the validity of a purported common law marriage." Burden v. Shinseki, 25 Vet. App. 178 (2013). Marriages deemed valid are addressed in 38 C.F.R. § 3.52. Under this regulation, 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 38 C.F.R. § 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. 38 C.F.R. § 3.52. Where a surviving spouse has submitted proof of marriage in accordance with paragraph (a) of this section and also meets the requirements of 38 C.F.R. § 3.52, the claimant's signed statement that he or she had no knowledge of an impediment to the marriage to the veteran will be 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 constitutes a "legal impediment" under this section. Lamour v. Peake, 544 F.3d 1317, 1322 (Fed. Cir .2008) (citing VA Gen. Coun. Prec. 58-91 (June 17, 1991)). VA follows the applicable state law in determining whether a marriage is valid. 38 C.F.R. § 3.1(j). Ohio allows common law marriage, but only if it was entered into prior to October 10, 1991. See Ohio Revised Code § 3105.12. Prior to October 10, 1991, a common law marriage could be created by a mutual contract to presently take each other as man and wife (in praesenti) and could be proven, "either by way of direct evidence which establishes the agreement, or by way of proof of cohabitation, acts, declarations, and the conduct of the parties and their recognized status in the community in which they reside." Nestor v. Nestor, 472 N.E.2d 1091, 1094 (Ohio Sup. Ct. 1984). Additionally, Ohio law requires the common law marriage must be established by clear and convincing evidence. Id. at 1094. The Appellant contends that she is the Veteran's surviving spouse. In October 2005, the Appellant wrote that she had lived with the Veteran since 1992. She contends that this is when her common law marriage began with the Veteran. Sometime after 1999, she and the Veteran moved into separate residences. The Appellant explained that she had grown apart from the Veteran. They continued their relationship while they lived separately. A child was not born to the Veteran and the Appellant at any time. In her August 2008 VA Form 9, the Appellant argued that it was unfair that VA followed state law to determine whether a marriage is valid. She elaborated that the benefit she sought was a federal benefit and should be uniformly granted regardless of state law considerations. VA treatment notes dated in January 2002 indicate that the Veteran was never married. He had been separated from his girlfriend for 18 months, but they remained friends. The Veteran's VA treatment records refer to the Appellant as his girlfriend. She is not referred to as his wife. In April 2002, the Veteran filed a claim for VA benefits. His VA Form 21-526 indicates he had never been married. In September 2005, the Veteran executed his last will and testament. Notably, the document refers to the Appellant as the Veteran's "special friend," not as his wife. In the same month, Dr. D.M. wrote that the Veteran was going home with his fiancée. He identified the Appellant as the Veteran's fiancée. The Veteran and Appellant were later legally married on September [REDACTED], 2005. In an October 2005 statement, the Appellant's daughter wrote that the Veteran and her mother lived together for 13 years beginning in 1992. The Veteran gave her away on her wedding day. A December 2005 letter from the SSA informed the Appellant that she was entitled to a $255 payment because of the death of the Veteran. M.S. and L.S. wrote, in May 2006 letters, that the Appellant and the Veteran lived together in 1992. They indicated that the Appellant and Veteran had a good relationship. M.S. would ask them why they did not get married. L.S. indicated that he always thought of them as husband and wife. R.B. identified the Veteran as his best friend. In a May 2006 letter, he indicated that the Veteran and the Appellant lived together in 1992 and that the Veteran thought of the Appellant as his wife. A July 2012 print out of the Veteran's obituary lists the Appellant as his "devoted wife." Based upon the forgoing, the Board concludes that the Appellant is not the Veteran's surviving spouse for the purposes of VA death benefits. By the Appellant's own admission, she entered into a "common law marriage" after Ohio ceased to recognize common law marriage (i.e., after October 1991). See Ohio Revised Code § 3105.12. Additionally, the weight of the evidence indicates that the Veteran did not consider the Appellant to be his wife prior to their legal marriage in September 2005. The Board acknowledges the lay statements of record that indicate the Veteran and Appellant represented themselves as husband and wife. However, these statements are outweighed by the other evidence of record. Notably, the Veteran filed a claim for VA benefits in 2002 and indicated he was single. VA treatment records refer to the Appellant as the Veteran's girlfriend and show that they were no longer together in 2002. Moreover, the Veteran's last will and testament refers to the Appellant as his "special friend." Based on the foregoing, the Board concludes that the recognition of the Appellant as the Veteran's surviving spouse for VA compensational and pension purposes is not warranted. Accordingly, the Appellant's claim is denied. See 38 U.S.C. § 1541(f); 38 C.F.R. § 3.54(a). ORDER Entitlement to recognition as the Veteran's surviving spouse for VA death benefits purposes is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs