Citation Nr: 1805326 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 15-12 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUE Entitlement to basic eligibility for Department of Veterans Affairs (VA) benefits as a surviving spouse based on a claimed common-law marriage to the Veteran, to include for the purpose of establishing entitlement to dependency and indemnity compensation (DIC), death pension based on dependency status, and accrued benefits. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Counsel INTRODUCTION The Veteran had active service in the United States Army from January 1967 to January 1969, to include service in Vietnam. The Veteran is deceased, and the appellant is claiming entitlement as a surviving spouse based on a common-law marriage in the state of Texas. This case comes to the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the VA Pension Management Center, located at the Regional Office (RO) in St. Paul, Minnesota. The appellant was afforded a videoconference Board hearing in September 2017, and a transcript has been associated with the record. The record has been held open additional time to give the appellant an opportunity to submit additional evidence. A motion to advance this appeal on the Board's docket due to financial hardship was made by the appellant's representative, and granted by the undersigned, at the September 2017 Board hearing. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c)(7). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran died in July 2010. 2. The Veteran's death certificate does not list the appellant as his surviving spouse. 3. Informal marriage, to include common-law marriage, is recognized as valid in the state of Texas, where the appellant claims that there was an agreement to be married, after the agreement, the couple lived together in Texas as husband and wife, and that the couple held themselves out to be married. 4. The appellant reports that she and the Veteran lived together until 2000, at the latest, and the record shows she first filed a claim in October 2010, which attempted to establish her status as a spouse in a common-law marriage. 5. Under Texas law, there is a rebuttable presumption against the existence of an informal/common-law marriage where, as here, more than two years passed from the time the Veteran and the appellant resided together and the time the appellant sought to establish her status as a common-law spouse. 6. There is no persuasive, credible evidence to show that the appellant and the Veteran were in an informal marriage, also referred to as a common-law marriage, at the time of the Veteran's death. 7. Under Texas law, the preponderance of the evidence is against a finding that an informal/common-law marriage was created between the appellant and the Veteran. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran's surviving spouse for the purpose of eligibility for VA benefits have not been met. 38 U.S.C. §§ 101, 103, 1101, 1301, 1541 (2012); 38 C.F.R. §§ 3.1(j), 3.50; Tex. Fam. Code § 2.401. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. DUTIES TO NOTIFY AND ASSIST The VCAA has been considered; however, the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). In the present case, there is no legal basis upon which the sought benefits may be awarded, and the appellant's claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. LEGAL PRINCIPLES AND REGULATIONS A. VA Law When a veteran dies, his or her surviving spouse may be eligible to receive VA death benefits, to include Dependency and Indemnity Compensation (DIC) benefits, death compensation, and death pension. See 38 U.S.C. §§ 1121, 1310, 1541; 38 C.F.R. § 3.50(a). VA DIC benefits are payable to a surviving spouse who was married to the veteran (1) within 15 years of the end of the period of service in which the injury or disease causing the veteran's death was incurred or aggravated; or (2) one year or more; or (3) 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. § 1304; 38 C.F.R. § 3.54(c). Consequently, "surviving spouse" status is a threshold requirement for both DIC and death pension benefits. For a person to establish recognition as a surviving spouse of a veteran, there must be evidence of a valid marriage to the veteran under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). VA defines a "marriage" as a marriage valid under the law of the place where the parties resided at the time of marriage, or the laws of the place where the parties resided when the right to benefits accrued. 38 U.S.C. § 103(c); 38 C.F.R. § 3.1(j). A valid marriage may be established by various types of documentary evidence together with the claimant's certified statement concerning the date, place and circumstances of dissolution of any prior marriage, provided that such facts, if they were to be corroborated by the evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205(a). As relevant here, a surviving spouse is a person (1) validly married to the veteran at the time of the veteran's death, (2) "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 (3) "who has not remarried or . . . 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. § 101(3); see 38 C.F.R. § 3.50(b); see also 38 C.F.R. § 3.54(c) (imposing additional limitations not implicated here). The VA recognizes "marriages other than by ceremony," under certain circumstances. 38 C.F.R. § 3.205(a)(6). Under 38 C.F.R. § 3.1(j), a marriage must be valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 U.S.C. § 103(a). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence). B. Texas Law Here, the parties resided in the state of Texas at the time of the claimed "informal marriage." The appellant has not alleged that she and the Veteran ever had a formal marriage, and there is no evidence to suggest that there was a signed declaration of marriage, such that the appellant is relying on Tex. Fam. Code § 2.401(a)(2) to establish the legal validity of her marriage. The state of Texas considers a common-law marriage an "informal marriage." An informal or common-law marriage exists in Texas if the parties (1) agreed to be married, (2) lived together in Texas as husband and wife after the agreement, and (3) represented to others that they were married. See Tex. Fam. Code Ann. § 2.401(a)(2) (West 2006); Russell v. Russell, 865 S.W.2d 929, 932 (Tex. 1993); Crenshaw v. Kennedy Wire Rope & Sling Co., 327 S.W.3d 216, 222 (Tex. App. San Antonio 2010, no pet.). According to Tex. Fam. Code Ann. § 2.401(b) if a proceeding in which a marriage is to be proved as provided by the aforementioned criteria ("Subsection (a)(2)"), is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married. The existence of an informal marriage is a fact question, and the party seeking to establish existence of the marriage bears the burden of proving the three elements by a preponderance of the evidence. Weaver v. State, 855 S.W.2d 116, 120 (Tex. App. Houston [14th Dist.] 1993, no pet.). An informal marriage does not exist until the concurrence of all three elements. Eris v. Phares, 39 S.W.3d 708, 713 (Tex. App. Houston [1st Dist.] 2001, pet. denied). To establish that the parties agreed to be husband and wife, it must be shown that they intended to create an immediate and permanent marriage relationship, not merely a temporary cohabitation that may be ended by either party. Id. at 714. As to the first element of a common-law or informal marriage, which is that the man and wife agreed to be married, an agreement to be married cannot be inferred from the mere evidence of cohabitation and representations of marriage to others, but such evidence may be circumstantial evidence of an agreement to be married. Tex. Fam. Code Ann. § 2.401(a)(2); Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993). The circumstances of each case must be determined from the facts of that case. Id. (Burden v. Burden, 420 S.W. 3d 305 (2013)). After the agreement to be married, the couple must satisfy the element of an informal/common-law marriage that requires they are living together in Texas as husband and wife. Tex. Fam. Code Ann. § 2.401(a)(2). Living together in another state does not satisfy this element of an informal/common-law marriage. Williams v. Home Indem. Co., 722 S.W.2d 7876, 788 (Tex. App. Houston [14th Dist.] 1987). Finally, to satisfy the third element of an informal/common-law marriage that parties held themselves out to the public as married, the parties must, in Texas, have represented to others that they were married. Tex. Fam. Code Ann. § 2.401(a)(2). The statutory requirement of "represented to others" is synonymous with the judicial requirement of "holding out to the public." It is well settled that "holding out" may be established by conduct and actions of the parties. Spoken words are not necessary to establish representation as husband and wife. Eris v. Phares, 39 S.W.3d 708, 710. C. Analysis The Board notes that it has reviewed all of the evidence in the claims file with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Here, the appellant indicated that she and the Veteran ceased living together in 2000 (at the latest) when the Veteran ran from Dallas in order to protect her and the children. Considering whether there was an informal marriage according to Texas law, as noted above, Tex. Fam. Code Ann. § 2.401(b) requires that a proceeding in which a marriage is to be proved, as provided by Subsection (2)(a), be commenced before the second anniversary of the date on which the parties ceased living together, or else it is rebuttably presumed that the parties did not enter into an agreement to be married. The appellant did not file her claim until 2010, following the Veteran's death, such that it was not within two years of when they ceased living together. As such, there is a rebuttable presumption that the appellant and the Veteran did not enter an agreement to be married under Texas law. Next, the Board has considered whether there is evidence to overcome the rebuttable presumption. 38 U.S.C. § 103(c) provides that the VA applies Texas's requirement that marriage be shown by a "preponderance of the evidence," thus trumping the "benefit of the doubt" standard generally applicable in processing a claim for VA benefits. See Burden v. Shinseki, 25 Vet. App. 178 (2012). In determining the validity of a marriage under state law, in Texas, the burden of proof that an informal or common-law marriage exists falls on the party seeking to establish the existence of such a marriage by a preponderance of the evidence. See Farrell v. Farrell, 459 S.W. 3d 114 (2015). The appellant is competent to report her living situation and the nature of her relationship. However, for reasons explained in greater detail below, the Board does not find the appellant's account to be credible. Credibility is an adjudicative determination. The Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the "inherent characteristics" of the appellant's statements are inconsistency. Here, the amended death certificate indicates that the Veteran died in July 2010 in Wichita, Kansas, and lists [redacted] as the surviving spouse. The informant, S. Haynie, was listed as the daughter of decedent. The Board finds that the death certificate provides probative evidence that at the time of the Veteran's death the appellant was not the surviving spouse. There is a December 2011 statement from [redacted] that [redacted] was in a common-law marriage with the Veteran. Ms. [redacted] indicated that she saw the Veteran nearly daily at work, and that he and Ms. [redacted] were generally known and considered as husband and wife, had a business together, and lived together. She reported that she had heard the Veteran and [redacted] refer to each other as husband and wife from December 2003 until the Veteran's death in 2010. Such interactions had taken place at work. Ms. [redacted] indicated that the Veteran had lived with Ms. [redacted] since 1999 in Wichita, Kansas, and that she had met them in 2003 and known them to be together continuously from 2003 until the Veteran's death in 2010. She also reported that the Veteran had been married to P. Haynie, and divorced in 1975 in Dallas, Texas. See Virtual VA, Supporting Statement Regarding Marriage, December 22, 2010. The Board finds that Ms. [redacted] is competent to report what she witnessed between the Veteran and [redacted]. Her reports are also credible given the level of detail and her own lack of pecuniary interest. As such, this evidence is afforded probative value. The appellant filed an October 2010 application for DIC, Death Pension and Accrued Benefits, and indicated that she was the Veteran's common-law wife. She reported the informal/common-law marriage began in 1988 and ended in 2000 in Texarkana, Texas. The Board observes that the appellant is competent to report the dates that she considers herself to have been in an informal/common-law marriage. Because this statement was made with the initial application, rather than later when she was appealing the denial of benefits, the Board finds them more credible than later statements. As such, the Board affords this statement greater probative value than her later statements suggesting that the marriage did not end. The appellant has stated that she and the Veteran met in March 1986, and moved in together that month. They had a child together in 1988, and another in 1993. The appellant's statements are unclear in that she indicates shortly after 1993, the Veteran was incarcerated but also indicated that from March 1986 to July 1993 the Veteran was incarcerated such that they were in a period of separation. The appellant stated that they lived together in Texarkana, Texas, and in 2000 they lived together in Dallas, Texas. The Veteran, however, reportedly got into some trouble and ran, while the appellant and children stayed in Dallas. See Virtual VA, Statement in Support of Claim, February 18, 2011 and Statement of Marital Relationship, February 18, 2011. In a Declaration of Status of Dependents the appellant listed herself and the Veteran, but checked "never married" under marital status. Here, the appellant is competent to report with whom she lived and had a child, and when. The Board finds the inconsistency in the exact periods does not necessary undermine her credibility as to the act of cohabiting. Nevertheless, the probative value of such testimony is minimal where it pertains to the period prior to 2000, and the Veteran did not die until 2010, and fails to illuminate the period from 2000 to 2010. VA treatment records from May 2010 indicate that the Veteran introduced [redacted] as his fiancé when he went for ambulatory surgery. When he was admitted to hospice in July 2010, [redacted] was listed as the emergency contact, friend. The Board notes that such treatment records that include evidence in the course of seeking medical attention, rather than in the course of pursuing monetary benefits, are competent, credible and probative evidence. The Board notes that such records failed to list the appellant as an emergency contact for hospice care. A March 2011 Supporting Statement Regarding Marriage was received from M. Noble, the appellant's mother. She indicated that the Veteran and appellant were generally known as husband and wife, did not deny marriage, and considered to be husband and wife because they lived together and had children together. She indicated that the Veteran and appellant lived together in Texarkana, Texas, and referred to one another as husband and wife, from 1986 to 1993. She indicated that the Veteran had not entered into another marriage that she knew of. (See Virtual VA). The appellant's mother is competent to report her knowledge of the appellant and Veteran's relationship, to include that they lived and had children together; however, she is not competent to determine whether the Veteran and the appellant were husband and wife for purposes of a common-law marriage, which is a legal question. Although the appellant's mother appears to be credible, the Board observes that M. Noble specifically includes the dates from 1986 to 1993, which again leaves a long gap between 1993 and 2000 when the appellant states that the Veteran left Dallas, Texas, or 2010 when the Veteran passed away. As such, this evidence is of very limited probative value. There is a Morris County Arrest Report that identified the appellant as the spouse and emergency contact, and at her March 2016 hearing before a Decision Review Officer, the appellant indicated that this pertained to the Veteran's 1997 arrest. Again, for the reasons mentioned above, the Board finds this evidence to be of limited probative value where it fails to shed light on the nature of the appellant and Veteran's relationship in either 2000 when he apparently left Dallas, Texas, or in the time between 2000 and his death. A pamphlet made in loving memory of the Veteran for the funeral service listed [redacted] as the Veteran's wife. The Board finds that such a pamphlet made in order to mourn the loss of a loved one, and to celebrate a life that has passed, is highly credible evidence for its lack of pecuniary interest in listing the surviving relations. Although the Board does not wish to opine as to the validity of the marriage with [redacted], it does note that the appellant's name is absent from the funeral service pamphlet. Further, the Board does not find the appellant's suggestion that this was merely a close friend who listed herself as the wife to be persuasive. See DRO Hearing Testimony, June 2016. Rather, the Board finds such an after-the fact justification made in the face of pecuniary interest to have very minimal probative value. In April 2012, S. Haynie, the Veteran's daughter reported that neither the appellant or [redacted] were married to the Veteran. At her September 2017 Board hearing, the appellant discussed that she had not cohabited with the Veteran at the time of his death, but indicated this was because he fled Dallas, Texas, following an incident which he believed necessitated his absence to keep her and the children safe. She explained that there was no intent to end the marriage. Here, although this evidence speaks to her belief that they were in agreement to be married, it fails to establish an informal common-law marriage at the time the Veteran fled Dallas, Texas. A September 2017 statement from the appellant's brother indicated that the Veteran and appellant lived as a family for multiple years, as did an additional statement from her sister-in-law. There was, however, no indication as to specific dates, or specifics in regards to the two individuals holding themselves out to be a married couple. An October 2017 statement from the Veteran's daughter with the appellant indicated that the Veteran and appellant had resided together prior to and after her birth, and throughout her life. Each of these statements, although competent and credible in attesting to what they witnessed as far as the couple living together, are afforded little probative value as they are insufficient in establishing a timeline for when the couple lived together, and they do not add any additional details regarding whether the couple held themselves out to be married, or agreed to be married. The statement that they lived as a family unit could as easily pertain to their relationships with the children, as it does the relationship between the appellant and the Veteran, such that these statements do little to clarify the underlying question of whether the couple was in an informal/common-law marriage. Here, although there is some evidence in support of an informal/common-law marriage for the Veteran and the appellant, there is not a preponderance of the evidence to overcome the rebuttable presumption against the marriage. The appellant asserts that she and the Veteran were in a common-law marriage under Texas laws at the time of his death. As noted above, Texas's requirements for a common-law marriage are: (1) an agreement to be married; (2) after the agreement, the couple live together in Texas as husband and wife; and (3) the couple held themselves out to be married. See Russell v. Russell, 865 S.W.2d 929 (Tex. 1993)). Indeed, there is a "heavy burden" to overcome the rebuttable presumption against an informal marriage in Texas, where more than two years since they last resided together passed before the appellant sought to establish her informal/common-law marriage, and the appellant has not met this burden. As noted, Texas provides for informal/common-law marriages when the man and woman agree to be married and after the agreement they live together in Texas as husband and wife and they represent to others that they are married. Yet the evidence from the time of the Veteran's death indicates that the Veteran and the appellant were not married. Specifically, the death certificate did not list the appellant as the Veteran's spouse, and she was not included in the memorial pamphlet. In addition, the Board finds the contemporaneous evidence immediately following the Veteran's death persuasive as to whether the Veteran and the appellant "agreed to be married" and "represented to others that they were married." Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than subsequently reported history). As noted, although the appellant is competent to attest to her relationship with the Veteran, the Board finds that she is not credible in her accounts. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In determining whether statements submitted by a claimant are credible, the Board may consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board acknowledges the presence of statements in the record suggesting that the Veteran and the appellant were in an informal/common-law marriage. However, these statements include (1) inconsistencies which undermine their credibility, both internally and with other evidence of record or (2) lack details such as dates in regards to whether the Veteran and appellant were in an informal/common-law marriage at the time of his death. Id. As to the inconsistencies, there have been inconsistencies in the appellant's own claims as to whether or not she was the Veteran's spouse. See Virtual VA, Declaration of Status of Dependents, received March 2011. Even though the appellant has attempted to explain these inconsistencies, the Board finds that the internal inconsistencies undermine the claim that the appellant and Veteran held themselves out to be a married couple. As to the lack of details, the appellant's supporting statements from her brother and sister-in-law reference an informal/common-law marriage for multiple years, without providing even minimal details to establish a timeline for the marriage, which undermines the facial plausibility. Such statements do little to meet the preponderance of the evidence standard to overcome the rebuttable presumption against the existence of the common-law marriage. 38 U.S.C. § 103; see Burden v. Shinseki, 25 Vet. App. 178 (2012). The statements of the appellant regarding cohabitation with the Veteran and the details of separations have been self-contradictory/internally inconsistent, which diminishes their credibility. Furthermore, the appellant's accounts of cohabitation history with the Veteran have been presented during the pursuit of VA monetary benefits, and her financial interest in establishing the facts presented in her accounts diminishes the credibility of her accounts as they are self-serving. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements). The appellant's statements are inconsistent with the totality of the evidence of record. The appellant has submitted various lay statements and supporting testimony from family members that she and the deceased veteran had lived together for many years and held themselves out as husband and wife. The Board, however, observes that there are multiple statements in VA records that tend to indicate no marital relationship between the appellant and the Veteran. In VA medical records, the Veteran identified a fiancé or lady friend to be contacted in emergency end of life situations. See Kansas City VA Medical Center (VAMC), May 4, 2010 Administrative Note and May 28, 2010, Palliative Care Note. The death certificate listed that same individual, rather than the appellant, as surviving spouse. On an application for VA benefits, received in June 2010 prior to his death in July 2010, the Veteran indicated his marital status as divorced, but did not name the appellant. The Board concludes that the appellant's statements are simply not credible evidence. To a large extent, as discussed above, there are objective documents that clearly refute her reported history and aspects of her testimony. Because of the inconsistency, the Board finds that the appellant's allegations have limited, if any, probative value. Accordingly, the Board finds that the preponderance of the evidence does not show that the appellant was in an informal marriage with the Veteran according to the state of Texas law, and as such, the appellant is not entitled to recognition as the Veteran's surviving spouse for the purpose of eligibility for VA death benefits. 38 U.S.C. § 103; Tex. Fam. Code Ann. § 2.401(a)(2), (b). The Board sympathizes with the appellant's position and expresses its sincere regret with respect to the loss of the Veteran. The appellant's arguments and the law have been considered, but for the reasons described above, the status sought as the Veteran's surviving spouse for purposes of VA benefits is precluded by law. The Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER Basic eligibility for Department of Veterans Affairs (VA) benefits as a surviving spouse based on a claimed informal/common-law marriage to the Veteran is denied. ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs