Citation Nr: 18142594 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-24 559 DATE: October 16, 2018 ORDER Recognition as the Veteran's surviving spouse is denied. FINDING OF FACT After divorcing in December 2006, the Veteran and appellant did not consistently represent themselves to others as being married. CONCLUSION OF LAW The criteria for recognition as the surviving spouse of the Veteran for the purposes of entitlement to VA benefits have not been met. 38 U.S.C. § 101(3), 101(31), 103, 1304, 1310, 1311, 1541, 5107; 38 C.F.R. § 3.1, 3.50, 3.54, 3.205; Tex. Fam. Code Ann. § 2.401(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from September 1970 to November 1973. He passed away in May 2015. The appellant has asserted that she is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 decision which did not recognize the appellant as the Veteran’s surviving spouse for Dependency and Indemnity Compensation (DIC). Recognition as the Veteran's surviving spouse I. Factual Background A marriage license shows the appellant and Veteran got married in May 1974. A court decree shows they were divorced in December 2006. The appellant has asserted that they nonetheless continued to live together as husband and wife in a common law (informal) marriage since then. In support of her contention that she and the Veteran maintained an informal marriage, the appellant submitted several pieces of evidence. Correspondence from a bank dated February 2010 shows the appellant and Veteran resided at the same address and apparently shared a car loan. An August 2012 physician’s statement addressed the Veteran’s medical condition and stated that the Veteran’s “wife” needed to be home to help him. The May 2015 death certificate lists the appellant as the Veteran’s spouse, based on her information. Mail from May 2016 again shows the two had lived at the same address. A May 2016 lay statement from C.W. reported that the two took frequent trips together during summer vacations, which continued after their divorce. A statement from L.R. noted that during and after their divorce, the Veteran and appellant maintained a loving and supportive relationship and continued to reside in the same household. In September 2015 and May 2016 statements, the appellant stated that, after the divorce, she and the Veteran continued to live together as husband and wife. However, a review of the Veteran’s claim for a nonservice-connected (NSC) pension provides further insight into the state of his marriage to the appellant. Historically, the Veteran was awarded the NSC pension in February 2003. At the time, VA noted that he could not be paid for the appellant as a dependent because she was not living with him and he was not providing her any support. This was apparently based on a January 2003 net worth statement in which the Veteran reported being separated from his wife due to marital problems. In a January 2005 Declaration of Status of Dependents, the Veteran identified himself as being married to the appellant. In a September 2005 Eligibility Verification Report, he indicated he was married and living with his spouse. Based on this information, the Veteran was notified in October 2005 that his pension payments were being reduced because his spouse, now added to his award, had income which reduced his pension payment. In November 2005, the Veteran reported that his wife (the appellant) had lost her job and they no longer had any income. An October 2006 notification letter informed the Veteran that his wife’s reported income would continue to be counted in determining his pension rate. In November 2006, the Veteran submitted correspondence stating that he and the appellant were separated in January 2000, but tried to reconcile in January 2005. At the end of that month, he moved to his youngest sister’s place because the reconciliation was not working. He stated that he and the appellant lived together for only 23 days in all of 2005, and that neither benefited from the other’s income. This is a direct contradiction to his earlier submissions, from 2005, that he was living with the appellant and that her lost job meant they, collectively, had no income. The appellant and Veteran then divorced in December 2006. He notified VA of this in a January 2007 statement, and VA resumed his pension payments effective that month based on the loss of the dependent spouse. In subsequent submissions to VA, the Veteran always referred to the appellant as his “ex-spouse.” This includes an August 2012 Eligibility Verification Report and accompanying statement in which he listed his marital status as “living with ex-spouse” and a May 2015 power of attorney form listing the appellant as “ex-spouse and current caregiver.” In a May 2014 Financial Status Report, the Veteran listed his marital status as “not married.” VA outpatient treatment records covering the period from 2012 through 2015 include references to both the Veteran’s “wife” and “ex-wife.” In September 2015, March 2016 and May 2016 statements, the appellant openly acknowledged that her divorce from the Veteran was solely to allow him to obtain the NSC pension payment. In May 2016, she stated that they divorced so the Veteran could “get his VA benefits started back” and that they “did not stop acting and living as husband and wife.” She later stated, “The divorce was only to get his benefits started back,” and that they “would still be married on paper if not for having to reinstate his VA benefits.” II. Applicable Laws A “surviving spouse,” for VA purposes is defined as a person who was 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 (except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse). 38 U.S.C. § 101(3); 38 C.F.R. § 3.50. 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). VA recognizes common law marriages under certain circumstances in jurisdictions where marriages other than by ceremony are recognized. 38 C.F.R. § 3.205(a)(6). The State of Texas, where the Veteran and appellant lived during the relevant period, provides for common law marriage, with such an arrangement being called an informal marriage under state law. In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by 1) evidence the man and woman agreed to be married and 2) after the agreement they lived together in Texas as husband and wife and 3) they represented to others that they were married. Tex. Fam. Code Ann. § 2.401(a). III. Analysis As noted above, there are three elements to establishing an informal marriage under Texas law. The third element states that a couple must have represented to others that they were married. There is evidence that the appellant and Veteran continued to represent themselves as married to friends, a medical professional, and a bank after they divorced in December 2006. However, the evidence also clearly shows that they represented themselves to VA as not being married for pension benefit purposes, based on multiple submissions by the Veteran to VA referring to the appellant as his “ex-spouse” or identifying himself as “not married” after they divorced in December 2006. This shows the Veteran and appellant were unwilling to represent themselves as married to VA when it was against their financial interest, yet now the appellant presents herself as the Veteran’s wife to VA when it is in her financial interest. These inconsistencies damage the credibility of their statements and greatly undermine the appellant’s contention that they were representing themselves as married to others. This is in addition to the Veteran’s wholly contradictory statements from 2005 and 2006 regarding whether he and the appellant lived together and whether each benefited from the other’s income. Those statements appear to have been fabricated for financial gain in response to VA first notifying him that he could not be paid an additional allowance for the appellant because they were separated and later notifying him that her income precluded or reduced the amount of his NSC pension payment after he stated that they were living together. In sum, this case demonstrates a history of the Veteran and appellant repeatedly portraying their relationship in a light most favorable to their financial interests. The evidence also does not show that they consistently represented themselves as married to others, including VA, after their divorce. Therefore, the elements of an informal marriage under Texas law have not been met, and recognition of the appellant as the Veteran’s surviving spouse is not warranted. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shamil Patel, Counsel