Citation Nr: 18145442 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-13 347 DATE: October 29, 2018 DECISION Entitlement to recognition as the Veteran’s surviving spouse for purposes of establishing eligibility for payment of Department of Veterans Affairs (VA) Dependency and Indemnity Compensation (DIC) benefits is granted. FINDINGS OF FACT 1. The Veteran and appellant were never married, but continuously lived together since approximately 2004 or earlier, and resided together for more than one year prior to the Veteran’s death. 2. The appellant lacked knowledge that common law marriages are not recognized in the state of California. 3. There is no information of record showing that a claim has been filed by a legal surviving spouse who has been found to be entitled to gratuitous death benefits. CONCLUSION OF LAW The appellant is entitled to recognition as the surviving spouse of the Veteran for purposes of establishing eligibility for payment of DIC benefits. 38 U.S.C. §§ 101(3), 103, 5107(b); 38 C.F.R. §§ 3.50, 3.52, 3.53, 3.54, 3.102, 3.205. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service in the United States Navy from December 1972 to December 1974. He passed away in May 2013. The appellant seeks to establish that she is the surviving spouse of the Veteran. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of the VA Regional Office (RO). By way of history, the Veteran was married to M.W. (also known as M.B.) from 1974 to 1983. In his April 1993 application for disability benefits the Veteran reported that he was divorced as of 1983. Beginning in approximately 2007, the appellant was listed as the Veteran’s representative payee for his benefits. There is evidence that the appellant was an active participant in the Veteran’s medical care for many years. A 2004 treatment note from a physician noted that much of the cleaning and cooking around the Veteran’s home was performed by his wife, the appellant. Another treatment note from March 2004 details the appellant, who is referred to as the Veteran’s wife, describing his mental health symptoms; at the time the treatment provider indicated that the Veteran had been with his common-law wife for 17 years. A January 2005 treatment note also referred to the appellant as the Veteran’s common law wife and caretaker for the prior 17 years. The Board notes that the Veteran and the appellant have two children together, a son and daughter, whose birth certificates listing both parents are part of the record. The children were born in 1991 and 1993, respectively. The Veteran also describes in a written statement having two children dependents with the appellant. When the Veteran passed away, he left all of his possessions to the appellant according to his last will and testimony. His death certificate listed the appellant as his wife. When the appellant’s claim was initially denied she timely filed her notice of disagreement, wherein she described being married to the Veteran for 25 years and she submitted a separate statement detailing the specifics of their relationship. The Veteran’s family submitted statements describing his relationship with the appellant. Specifically, the Veteran’s daughter, V.C., described knowing the appellant as a mother since the age of three, and the Veteran and appellant’s daughter, J.H., described her parents as being together constantly throughout her life. The Veteran’s granddaughter, I.C., described the Veteran and appellant as her grandparents. The Veteran and appellant’s son, C.H., described his parents as living together continuously until the Veteran went into a nursing home. Stepdaughter C.C. had similar contentions that the Veteran and appellant were continuously together, as did the appellant’s sister, C.W. The Veteran and appellant’s children described their parents as wearing wedding rings to show their commitment to each other. The appellant submitted her own statement indicating that she believed that her marriage was a valid one and that she was unaware that California did not acknowledge common law marriage. The law provides that VA death benefits may be paid to a surviving spouse who was married to a veteran: (1) one year or more prior to a veteran’s death, or (2) for any period of time if a child was born of the marriage, or (3) was born to them before the marriage. 38 U.S.C. §§1102, 1304, 1541; 38 C.F.R. § 3.54. The term “surviving spouse” means a person who was the spouse of the veteran at the time of a veteran’s death, and who lived with the veteran continuously from the date of marriage to the date of a veteran’s death (except where there was a separation which was due to the misconduct of, or procured by, a veteran without the fault of the spouse in the case of temporary separations) and who has not remarried or (in cases not involving remarriage) has not since the death of a veteran lived with another person and held himself or herself out openly to the public to be the spouse of such other person. See 38 U.S.C. §101(3); 38 C.F.R. § 3.50. For purposes of VA benefits, a marriage means a marriage valid under 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(c); 38 C.F.R. § 3.1(j). In this case, the parties (the Veteran and the appellant) resided in the state of California. Where an attempted marriage is invalid by reason of legal impediment, VA law and regulations allow for certain attempted marriages to be “deemed valid” if certain legal requirements are met. Such an attempted marriage will be “deemed valid” if: (a) the attempted marriage occurred one year or more before the Veteran died; 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 the attempted marriage until his death; and (d) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits. 38 U.S.C. §103(a); 38 C.F.R. § 3.52. Where a surviving spouse has submitted proper proof of marriage and also meets the requirements of 38 C.F.R. § 3.52, the claimant’s signed statement that 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). In cases in which there is an impediment to entering into a common-law marriage, if the appellant was unaware of the impediment, then an otherwise invalid common-law marriage could be deemed valid. See Colon v. Brown, 9 Vet. App. 104 (1996). In reviewing this claim, the Board initially notes that common law marriages may not be formed in California, and that VA has determined that the requirement of a marriage ceremony by a jurisdiction that does not recognize common-law marriage constitutes a “legal impediment” to such a marriage for purposes of 38 U.S.C. § 103(a); see also Colon, 9 Vet. App. 104. The appellant has essentially contended that she was the common law spouse of the Veteran, that she had been his spouse for 25 years, and that they had lived together as a husband and wife since at least 2004 (although likely earlier given that their children were born in 1993 and 1995). The Board notes that the Veteran and appellant objectively appeared to live together as evidenced by the medical treatment notes as early as 2004 describing the appellant’s role in their shared household, as well as the statements from the Veteran’s family; the only time they were separated was when the Veteran went into a nursing home during which time the appellant visited him daily. The record reflects the appellant believed they had a common law marriage. The appellant has also submitted statements from her son, daughter, stepdaughter, granddaughter, and sister, attesting to the fact that she and the Veteran conducted themselves as husband and wife. There is no statement of record from any person that the appellant and the Veteran did not hold themselves out as husband and wife. The question becomes whether the appellant was aware of the impediment that common law marriages may not be formed in California. In that regard, the evidence strongly suggests that she was not. The appellant referred to herself as the Veteran’s surviving spouse in her May 2013 application, and she described their marriage as one of “spiritual bonding” and that due to the Veteran’s mental health disability they were unable to have any other type of marriage. While the legal requirements vary by jurisdiction, typically, all of the following elements must be present to establish a common law marriage: (1) an explicit or inferred agreement between the parties to be married; (2) cohabitation for some period of time; (3) holding each other out to the public as husband and wife. In that regard, the preponderance of the evidence of record shows that the appellant and the Veteran lived together for at least six years prior to the Veteran’s death and the evidence overwhelmingly shows that they held each other out to the public as husband and wife from at least 1988 to the time of the Veteran’s death in 2013. Moreover, through her various submissions, the appellant has indicated she did not realize common law marriage was not recognized in California. Furthermore, the record contains no evidence that the appellant had knowledge of an impediment to the common law marriage to the Veteran. See Colon, 9 Vet. App. 104. The remaining question is whether a claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits. No other woman has come forward purporting to be the Veteran’s surviving spouse, and there is no evidence showing that a claim for VA death benefits has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits. In sum, the Board finds that the attempted common law marriage meets the criteria for a valid marriage between the Veteran and appellant and that she may be considered the Veteran’s surviving spouse under VA regulations. At the very least, there is an approximate balance of evidence both for and against the claim that the appellant is the Veteran’s surviving spouse for the purposes of claiming VA death benefits. Under such circumstances, all reasonable doubt is resolved in favor of the appellant, and the claim will be decided on that basis. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. According, the appeal is granted. (Continued on the next page) Because this decision establishes a date of marriage more than one year prior to the Veteran’s death, recognition of the appellant as the Veteran’s surviving spouse for purposes of eligibility for payment of VA DIC benefits is warranted. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel