Citation Nr: 1803848 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-15 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Milwaukee Pension Center THE ISSUE Entitlement to recognition of the appellant as the Veteran's surviving spouse for purposes of eligibility for payment of Department of Veterans Affairs (VA) benefits, to include Dependency and Indemnity Compensation (DIC) and pension. ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney INTRODUCTION The Veteran served on active duty from January 1971 to May 1972. He died in June 2010. The appellant contends that she was in a common law marriage with the Veteran at the time of his death. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 administrative decision of the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin. This appeal was processed using the Virtual VA (VVA) and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future review of this Veteran's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The appellant's claim for DIC under 38 U.S.C. § 1318 (2012), to include recognition as the surviving spouse of the Veteran is being remanded for further notice and development. The appellant did not receive adequate notice under 38 U.S.C. § 5103 (2012) and 38 C.F.R. § 3.159 (2017) as to the evidence required to substantiate her claim as a surviving spouse. Since the appellant claims that she had a common law marriage with the Veteran before his death, the notice must include information and evidence necessary to establish a common law marriage in the state of Texas, which was the state in which the appellant states she and the Veteran established their common law marriage after their divorce decree was judicially rendered. 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. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). Regulations provide that a marriage is valid for VA purposes when it is considered valid under the laws of the place where the parties resided at the time of marriage. 38 C.F.R. § 3.1(j) (2017). Texas law provides that common law marriages are recognized, when the parties 1) agree to be married, 2) hold themselves out to others as married, and 3) live together in Texas as husband and wife. There is no time requirement. Tex. Fam. Code Ann. § 2.401 (West 2017). In cases involving alleged common law marriages, there must be proof of a common law marriage for the purpose of receiving VA benefits. Supporting evidence of common law marriage should include 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 husband and wife, and whether they were generally accepted as such in the communities in which they lived. 38 C.F.R. § 3.205(a) (2017). Here, the appellant has presented numerous detailed statements tracing her marriage to the Veteran in Arkansas in 1974 and subsequent divorce in Texas in 1983. There are statements from the appellant and a daughter that the appellant and the Veteran continued living together from the date of their divorce, subsequently moving to Arkansas in 1999, and holding themselves out as husband and wife until the Veteran died. There were statements that they held joint bank accounts, joint loans, had joint automobile insurance, and filed joint tax returns up until the Veteran did not have to file any longer. The appellant stated that the Veteran purchased pre-paid funeral plans and burial plots for them. The appellant stated that she has been recognized by the Social Security Administration (SSA) as the Veteran's surviving spouse. Significantly, the appellant presented a Deed Partitioning Community Property in Texas, which was made between the Veteran and appellant as common law husband and wife. The Veteran signed the deed in July 1999, and his signature was notarized. The Appellant did not sign the deed. In her December 2010 application for DIC benefits, the appellant stated that although they had applied for a second divorce, they never finalized it and decided to stay together. On her application, the appellant provided the same address as that listed for the Veteran on his Certificate of Death. The appellant indicated that she has not remarried since the Veteran's death. In her May 2011 notice of disagreement, the appellant stated that she and the Veteran did not divorce from their common law marriage and that Social Security verified that they were legally married. The issue for the Board is whether the appellant and the Veteran continued their Texas common law marriage after 1999 when they moved to Arkansas. The lay statements provided so far have not been in the form of affidavits and they have not been supported by any underlying documentation. The evidence of record shows that the Veteran was identified as divorced on the Certificate of Death. On his June 2002 application for compensation, the Veteran listed his mother as his nearest relative and indicated that he was divorced. As noted above, the Veteran showed an intent in July 1999 to end his common law marriage with the appellant. On remand, the appellant must be given notice of the prescribed form for presenting her evidence. Additionally, the outstanding SSA records must be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Send a letter to the appellant providing her adequate notice pursuant to 38 U.S.C. § 5103 (2012) and 38 C.F.R. § 3.159 (2017) regarding her claim for DIC, including recognition as the Veteran's surviving spouse. The letter must include notice of the evidence necessary to establish a common law marriage for purposes of establishing recognition as a surviving spouse for VA death benefit purposes. In Texas, a common law marriage is recognized when the parties 1) agree to be married, 2) hold themselves out to others as married, and 3) live together in Texas as husband and wife. There is no time requirement. Tex. Fam. Code Ann. § 2.401 (West 2017). As part of the notice, the appellant should be asked to submit supporting evidence and statements concerning her claimed common law marriage to the Veteran and the continuation of that common law marriage after the move to Arkansas. Supporting evidence of a common law marriage could include statements from the appellant and other appropriate individuals with knowledge concerning the alleged marriage, such as whether the appellant and Veteran generally held themselves out in the community as husband and wife and/or the reputed nature of their relationship, the agreement and intent between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as a result of the relationship. 2. Additionally, the AOJ must attempt to obtain a copy of any SSA determination and copies of any records used in making that determination concerning the appellant's status as the Veteran's surviving spouse. All attempts to secure this evidence must be documented in the claims file by the AOJ. If, after making reasonable efforts to obtain named records the AOJ is unable to secure same, the AOJ must notify the appellant and (a) identify the specific records the AOJ was unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain those records; (c) describe any further action to be taken by the AOJ with respect to the claim; and (d) that the appellant is ultimately responsible for providing the evidence. The appellant must be given an opportunity to respond. 3. After completing the above actions and any other development as may be indicated by any response received in consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If any benefit sought on appeal remains denied, the appellant should be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review. 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. §§ 5109B, 7112 (2012). _________________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).