Citation Nr: 18140891 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 17-23 291 DATE: ORDER New and material evidence having been received to reopen a claim of entitlement to dependency and indemnity compensation as the Veteran’s surviving spouse the claim is reopened. Entitlement by the appellant to dependency and indemnity compensation as the surviving spouse of the Veteran is denied. FINDINGS OF FACT 1. A claim by the appellant of entitlement to dependency and indemnity compensation, as the unremarried widow of the Veteran, was denied in a November 1969 decision notice, a June 2000 Board decision, and a February 2006 decision notice. These decisions are final. 2. Evidence received since February 2006 relates to an unestablished fact necessary to substantiate the claim of entitlement to dependency and indemnity compensation as the surviving spouse of the Veteran. 3. The Veteran was legally married to E. on July [redacted], 1946, and they remained legally married until the Veteran’s death. 4. The Veteran and the appellant cohabitated from 1956 to 1968, but they were aware of the legal impediment to their marriage. 5. The Veteran and the appellant received a marriage license on December [redacted], 1968, but the marriage was not valid, as the Veteran was already married. 6. The Veteran died on December [redacted], 1968 due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The November 1969 decision notice, the June 2000 Board decision, and the February 2006 decision notice, which denied the appellant entitlement to dependency and indemnity compensation as the unremarried widow of the Veteran, are final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1100, 20.1103. 2. The criteria for recognition of the appellant as the Veteran’s surviving spouse/unremarried widow for purposes of entitlement to VA benefits have not been met. 38 U.S.C. §§ 101(3), 1541, 5107; 38 C.F.R. §§ 3.1(j), 3.3, 3.50, 3.52, 3.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active service from February 1945 to June 1945. He died in December 1968. The appellant is claiming status as the Veteran’s surviving spouse. The appellant’s claim of entitlement to dependency and indemnity compensation, as the unremarried widow of the Veteran, was first denied by the Regional Office (RO) in a decision rendered in November 1969. The RO held, by means of an administrative decision rendered in November 1969, that there was no evidence showing that the Veteran’s prior marriage had ever been dissolved and that the Veteran and the appellant knew and acknowledged this prior marriage. The RO also found that the Veteran and the appellant were ceremoniously married one day before he died, and held that since the Veteran and the appellant had not lived together one year or more after the marriage, a deemed marriage was not established. The RO held that neither a deemed valid common-law relationship nor a deemed valid marriage existed between the appellant and the deceased Veteran for the purpose of payment of benefits. Hence, the appellant’s claim was denied. The appellant was notified of that decision, and of her appellate rights and procedures, but did not submit a timely notice of disagreement with that decision, and it is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 20.204, 20.302, 20.1103. The appellant later appealed the issue of whether a timely notice of disagreement was submitted for the November 1969 decision, and the Board, in July 1998, determined that the appellant had not submitted a timely appeal of the RO’s November 1969 decision. A January 2000 Board decision found that the July 1998 Board decision was not clearly and unmistakably erroneous. In March 1996, the appellant again submitted a claim of entitlement to dependency and indemnity compensation. The appellant was notified in a November 1996 decision letter that the previous denial of the claim had not changed. The appellant submitted a timely notice of disagreement to this decision and perfected an appeal to the Board. In a June 2000 Board decision, the Board found that no new and material evidence had been received to reopen the claim of entitlement to dependency and indemnity compensation as the unremarried widow of the Veteran. The appellant did not appeal the June 2000 Board decision, and it is final. See 38 C.F.R. § 20.1100. The appellant submitted another claim of entitlement to dependency and indemnity compensation in January 2006. The appellant was sent a decision letter in February 2006 stating that the reason for the prior denials had not changed, and that the appellant was not recognized as a surviving spouse of the Veteran. The appellant did not submit a notice of disagreement with that decision, and it is final. See 38 C.F.R. § 20.1103. The appellant submitted a new informal claim of entitlement to dependency and indemnity compensation in March 2015 and submitted a formal VA Form 21-534EZ application for benefits in February 2016. The appellant was sent a June 2016 decision letter which informed her that the reason for the previous denial was unchanged, and this denial was appealed by the appellant to the Board. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999). Since the last final decision in February 2006, the appellant has submitted a certification of holy matrimony from the state of Florida which states that the appellant and the Veteran were married on December [redacted], 1958. Although the “58” in 1958 is handwritten and appears to be written over different writing, the Board will presume that this evidence is credible, and, as it related to an element necessary to substantiate the claim, finds that the claim may be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The preponderance of the evidence, however, is against establishing that the appellant qualifies to be considered the surviving spouse of the Veteran. Hence, she is not eligible for dependency and indemnity compensation as the unremarried widow of the Veteran. When a veteran dies of a service-connected disability, the veteran’s surviving spouse is eligible for dependency and indemnity compensation. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The Board notes that in this case, the evidence indicates that the Veteran died due to his service-connected chronic glomerular nephritis. A surviving spouse is 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 and who has not remarried or, after September 19, 1962, lived with another person or held himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C. §101(3); 38 C.F.R. § 3.50(b). The Board notes that the regulations pertaining to surviving spouse benefits were revised in February 1997 for the purpose of replacing gender-specific language in the regulation with gender-neutral language, such as changing “wife” and “widow” to “spouse” and “surviving spouse.” The regulation change did not make any significant modification to the requirements for establishing an individual’s status as a veteran’s spouse. The law provides that dependency and indemnity compensation may be paid to a surviving spouse who was married to a veteran: (1) one year or more prior to the veteran’s death, or (2) 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. §§ 1102, 1304; 38 C.F.R. § 3.54. The validity of a marriage is determined based upon the law of the jurisdiction where the parties resided at the time of marriage or when the rights to benefits accrued. 38 C.F.R. § 3.1(j). In jurisdictions where marriages other than by ceremony are recognized, such as “common law marriages,” the marriage can be established through evidence such as length of cohabitation and whether children were born as a result of the relationship. 38 C.F.R. § 3.205. 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 it occurred one year or more before the veteran died or existed for any period of time if a child was born, and the claimant entered into the marriage without knowledge of the impediment, the claimant cohabitated with the veteran continuously until his death, and no claim had been filed by a legal surviving spouse who has been found entitled to death benefits. 38 C.F.R. § 3.52. As has been previously discussed in multiple prior denials, by regional offices and the Board, the evidence shows that the Veteran married his wife E. in July 1946. While the record shows that the Veteran and E. were separated by 1951, the evidence does not establish that they ever officially dissolved their marriage. A “Divorce Complaint” was submitted, which was later deemed to have been dated on December [redacted], 1968, and which showed that the Veteran had sued E. for divorce. There is no evidence, however, indicating that any further action was taken following the submission of the divorce complain. The evidence further indicates that the Veteran died on December [redacted], 1968, before a divorce could be completed. A September 1969 letter was received from the Florida State Board of Health which indicated that they had made a careful search of records from 1946 to 1968, and failed to find a record documenting that the Veteran and E. had been divorced. The appellant has reported that she remarried to R.N.L. in July 1973, but a Temporary Order is of record showing that this marriage of the appellant was then legally dissolved in December 1974. See 38 U.S.C. § 103(d)(2)(A). The Board notes that the regulations pertaining to the remarriage of surviving spouses was revised so that marriages occurring after 1971 which were later terminated would not result in an automatic bar to surviving spouse benefits. 38 C.F.R. § 3.55(a)(2). A November 1969 VA administrative decision noted that the appellant stated that she had been told by the Veteran that he was divorced since 1951, and that she had been ceremoniously married to the Veteran on December [redacted], 1968. She had also stated, however, that she and the Veteran had lived together, unmarried, had two children, and “knew that one day they would marry when there was enough money.” The November 1969 Administrative Decision found that the evidence indicated that the appellant and Veteran knew that their marriage would not be valid until the Veteran’s first marriage was dissolved, and the Veteran had been paying apportionment of his VA compensation to his wife E. and their child. The November 1969 Administrative Decision further held that since they did not live together for one year or more after marriage, a deemed valid marriage was not established. The final determination was that a common-law relationship or a deemed valid marriage did not exist between the claimant and the Veteran for the purpose of payment of VA benefits. While the state of Florida did acknowledge common law marriage at the time that the appellant and the Veteran entered their relationship, the Board is unable to find that a state of common law marriage existed between the appellant and the Veteran. See § 741.211 Fla. Stat. (prohibiting common-law marriages for marriages entered into after 1968). Submissions from the appellant indicate that she was in a relationship with the Veteran since approximately 1956. She has submitted statements from friends who indicate that the appellant was in a relationship with the Veteran from 1956 until his death. Birth certificates for the appellant’s sons show that they were born in August 1957 and August 1960, and the Veteran is listed as their father. This therefore indicates that in addition to cohabitating for many years, the appellant and the Veteran also had children together. The Board finds, however, that the preponderance of the evidence indicates that the appellant and the Veteran were aware, at the time of their relationship, that he was already married to a different woman. The preponderance of the evidence further shows that they were aware that this marriage was a bar to marriage with the appellant. While the Board can allow for recognition of marriage status where an attempted marriage was invalid by reason of a legal impediment, the claimant must enter into the marriage without knowledge of the impediment. 38 C.F.R. § 3.52. The appellant has been greatly inconsistent in her assertions regarding whether she was aware that the Veteran was still married to another woman when they began their relationship. She has written that she was told by the Veteran that he divorced in 1951, or alternatively that he had told her that he applied for a divorce, but then felt he no longer needed to go through with it because his ex-wife had remarried and had children with another man. The appellant has also stated that she was aware that the Veteran had filed for divorce in 1968 and that she believed that the Veteran’s request for a divorce in 1968 constituted a valid divorce agreement. She wrote in March 1969 that she and the Veteran “started to get this straightened out” when they were living together, but kept putting it off because they did not think a formal marriage was necessary. She wrote that when she learned that they had to be married in order to receive his “Navy Yard” pension, they applied for a marriage license. Since her prior claim in January 2006, she has also claimed that they were actually married in 1958, and she has submitted a certificate of holy matrimony which supposedly indicates that they were married on December [redacted], 1958. The appellant has also submitted a copy of the divorce complaint in which the Veteran sued E. for divorce, but appears to have erased the word “Complaint” in order to make the document appear to be an actual divorce decree. The Board finds that the certificate of holy matrimony is not authentic and that it is not probative evidence that a valid marriage existed between the appellant and the Veteran in 1958. The certificate, on its face, appears to have had 1968 hand-written on it, which was then over-written with the number “58” in place of “68.” This record is not certified by a court or signed by a representative of the county court with a notation as an amended copy of the one of record. Moreover, it is far less probative than the multiple earlier submissions of a Marriage License from the state of Florida showing that the Veteran and the appellant were married before a county judge on December [redacted], 1968. The Board finds that the evidence clearly establishes that the Veteran was married to E. at the time that he entered a relationship with the appellant. The preponderance of the evidence shows that the Veteran remained married to E. until his death. The preponderance of the evidence indicates that the appellant and the Veteran were aware that he was still married to E., and that this was a bar to their marriage. The Veteran was paying apportionment of his VA benefits to E., as his wife, and he eventually did file for divorce from E., which the appellant was fully aware of. The appellant stated that she and the Veteran had wanted to get married, but were waiting until they had more money and could do so. The fact that the appellant and the Veteran did apply for and receive a marriage license in December 1968 demonstrates that they were aware of the need to be legally married in order for her to be legally entitled to spousal benefits. In fact, she has written that they decided to get married after she learned that this was required for her to receive his pension benefits. In sum, the Board finds that the preponderance of the evidence indicates that the Veteran was still married to E. at the time of his death in December 1968, and although the Veteran filed for divorce in December 1968, a divorce had not yet been granted by a court of competent jurisdiction. While the Veteran and the appellant received a marriage license in December 1968, this marriage was not valid, as the Veteran was already married. The Board is also unable to recognize that a common law marriage existed between the appellant and the Veteran, as the Veteran was already married, and the appellant entered into the relationship with knowledge of the legal impediment to marriage. The Board recognizes the appellant’s contentions that she lived with the Veteran for many years, had children with him, and cared for him at the end of his life, and therefore believes that she should be recognized as the equivalent to a spouse. The Board, however, is required to follow the specific provisions of the controlling law and regulations. See 38 U.S.C. § 7104(c); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board has considered the benefit of the doubt doctrine, but as the preponderance of the evidence is against the claim, this doctrine is not for application. See 38 U.S.C. § 5107(b). The claim is denied. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary E. Rude, Counsel