Citation Nr: 18158608 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 07-11 251 DATE: December 18, 2018 ORDER Entitlement to recognition as the Veteran’s surviving spouse for purposes of VA death benefits is granted. FINDINGS OF FACT 1. The Veteran and the Appellant were married in October 1999, and remained married until the death of the Veteran in June 2004; the Appellant has not remarried since his death. 2. Prior to the Veteran’s death, the Veteran and Appellant did not cohabitate continuously, initially by mutual consent of the Veteran and the Appellant, and ultimately due to the misconduct of the Veteran without the fault of the Appellant. CONCLUSION OF LAW The Appellant has met the criteria for recognition as the Veteran’s surviving spouse for VA death benefit purposes. 38 U.S.C. §§ 101 (3), 1102, 1304, 1310, 1311, 1541, 5107 (West 2014); 38 C.F.R. §§ 3.1 (j), 3.50, 3.54, 3.205 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to recognition as the Veteran’s surviving spouse for purposes of VA death benefits Marriage means a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. § 3.1 (j). “Spouse” means a person whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j). 38 C.F.R. § 3.50(a). Surviving spouse. Except as provided in 38 C.F.R. § 3.52 (2017), “surviving spouse” means a person whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1 (j) and who was the spouse of the veteran at the time of the veteran’s death and: (1) 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 (2) Except as provided in 38 C.F.R. § 3.55 (2017), has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50 (b). Proof of marriage. Marriage is established by one of the following types of evidence: (1) Copy or abstract of the public record of marriage, or a copy of the church record of marriage, containing sufficient data to identify the parties, the date and place of marriage, and the number of prior marriages if shown on the official record. (2) Official report from service department as to marriage, which occurred while the veteran was in service. (3) The affidavit of the clergyman or magistrate who officiated. (4) The original certificate of marriage, if the Department of Veterans Affairs is satisfied that it is genuine and free from alteration. (5) The affidavits or certified statements of two or more eyewitnesses to the ceremony. (6) In jurisdictions where marriages other than by ceremony are recognized the 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 married, and whether they were generally accepted as such in the communities in which they lived. (7) Any other secondary evidence which reasonably supports a belief by the Adjudicating activity that a valid marriage actually occurred. 38 C.F.R. § 3.205 (a) (2017). Valid marriage. In the absence of conflicting information, proof of marriage which meets the requirements of paragraph (a) of this section together with the claimant’s certified statement concerning the date, place and circumstances of dissolution of any prior marriage may be accepted as establishing a valid marriage, provided that such facts, if they were to be corroborated by record evidence, would warrant acceptance of the marriage as valid. Where necessary to a determination because of conflicting information or protest by a party having an interest therein, proof of termination of a prior marriage will be shown by proof of death, or a certified copy or a certified abstract of final decree of divorce or annulment specifically reciting the effects of the decree. 38 C.F.R. § 3.205 (b). Under 38 U.S.C. § 103 (c), “state law, including state law evidentiary burdens, must be applied in determining the validity of a purported common law marriage.” Burden v. Shinseki, 25 Vet. App. 178 (2013). Marriages deemed valid are addressed in 38 C.F.R. § 3.52. Under this regulation, 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: (a) The marriage occurred 1 year or more before the veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage (see 38 C.F.R. § 3.54 (d)), 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 marriage to the date of his or her death as outlined in §3.53, and (d) No claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the veteran’s death. 38 C.F.R. § 3.52. Where a surviving spouse has submitted proof of marriage in accordance with paragraph (a) of this section and also meets the requirements of 38 C.F.R. § 3.52, the claimant’s signed statement that he or 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). The requirement of a formal marriage ceremony by a jurisdiction that does not recognize common law marriage constitutes a “legal impediment” under this section. Lamour v. Peake, 544 F.3d 1317, 1322 (Fed. Cir.2008) (citing VA Gen. Coun. Prec. 58-91 (June 17, 1991)). VA follows the applicable state law in determining whether a marriage is valid. 38 C.F.R. § 3.1 (j). The Appellant contends that she is the Veteran’s surviving spouse. During her January 2017 travel Board hearing, the Appellant testified that she and the Veteran were first married in August 1982, divorced in 1994, then remarried in October 1999. The record shows that the Appellant was first married in November 1980 to an individual who was not the Veteran. This is supported by a record of marriage in the Commonwealth of Massachusetts, dated in November 1980. However, this first marriage ended in divorce, as established by the Appellant’s testimony and a March 1981 Judgement of Divorce in the Commonwealth of Massachusetts. Thereafter, the Appellant married the Veteran in October 1982 as evidenced by a New York State Department of Health Marriage License. During her January 2017 travel Board hearing, the Appellant testified that she and the Veteran divorced in 1994. The divorce was at least, in-part, due to the Veteran’s acts and threats of physical violence toward the Appellant. These allegations are supported by an April 1984 criminal complaint which names the Veteran as committing aggravated battery against the Appellant. During her January 2017 travel Board hearing, the Appellant testified that prior to her remarriage to the Veteran she was in a relationship with B.H. However, she reestablished her relationship with the Veteran, and they remarried in October 1999. This is evidenced by an October 1999 certificate of marriage from the State of Florida. A May 2012 statement from F.M. alleged that the Appellant had cohabitated with another man and had become impregnated by him. This allegation has been refuted by the Appellant, and there is no credible evidence to support that she lived with, or had a child with, another man after her remarriage to the Veteran. The Appellant testified that she lived with the Veteran as husband and wife following their remarriage, until she moved to Massachusetts in July 2000 to help support her family. She further testified that she remained in Massachusetts until 2002 or 2003. In July 2000 letter, the Veteran discussed the fact that he did not have any motivation for intercourse, despite being married. This would suggest that the Veteran considered himself married to the Appellant at the time she moved to Massachusetts. A March 2002 letter from the Appellant states that she had separated from the Veteran due to irreconcilable differences. She further alleged that the Veteran continued to receive spousal benefits despite her “legal address change”. The Appellant also states in the letter that “since my geographical separation from him, the full benefits which my husband now collects are inappropriate.” During her January 2017 Board hearing, the Appellant testified that she did not know how long she would need to be in Massachusetts, but originally estimated it would be a few months. The Veteran died on June [redacted], 2004. Associated with the record are February 2006 lay statements from E.B. and B.H. stating that the Appellant, although separated from the Veteran, there was no discussion of divorce. There was communication by phone and mail. It was also noted that the Appellant supported herself financially. The Appellant testified during her May 2009 Board hearing that she returned to Florida in 2003 in an attempt to reestablish her relationship with the Veteran, but was unable to do so due to threats of physical violence. She further testified that she only spoke to the Veteran twice upon her return and was not aware of the Veteran’s final illness until after his death. She did not attend the Veteran’s funeral. Upon a review of the evidence, as recounted above, the Board determines that the Appellant and Veteran were not continuous cohabitated at the time of the Veteran’s death. However, this lack of cohabitation was ultimately due solely to the misconduct for the Veteran. Although the Appellant moved to Massachusetts from Florida less than a year after their remarriage, it appears from the Veteran’s July 2000 letter and the Appellant’s testimony that they acted at husband and wife at this time. They also cohabitated until July 2000. Furthermore, taking into consideration the Veteran’s 1984 criminal charges involving the Appellant, the Board finds the Appellant’s testimony regarding threats of physical violence credible. Despite the fact that the Veteran alleged prior to his death that the Appellant abandoned the marriage, the Appellant also returned to Florida and expressed a desire to resume their marriage. However, she testified that this was not possible due to his threats of violence. Viewing the evidence in a light most favorable to the Appellant, the Board finds that the Appellant’s and Veteran’s separation ultimately can be viewed as having been due to the Veteran’s misconduct without the Appellant’s fault. The record prior to the Veteran’s death supports that the Appellant left Florida in July 2000 and both parties considered themselves married. Given the history of domestic violence in the marriage, and the Appellant’s testimony regarding the Veteran’s threats prior to her return to Florida, the resulting end of cohabitation was ultimately due solely to the Veteran’s misconduct. 38 C.F.R. § 3.53. The Board concludes that the Appellant’s marriage to the Veteran was valid for VA purposes and that she meets the definition of a surviving spouse for the purposes of entitlement to death benefits under 38 C.F.R. § 3.54. Recognition of her as the Veteran’s surviving spouse for VA purposes is warranted. 38 C.F.R. §§ 3.50, 3.54. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel