Citation Nr: 19168331 Decision Date: 09/04/19 Archive Date: 09/04/19 DOCKET NO. 15-20 475 DATE: September 4, 2019 ORDER Entitlement to supplemental Dependency and Indemnity Compensation (DIC) monthly allowance payable under 38 U.S.C. § 1311(a)(2), to include entitlement to recognition as the surviving spouse of the Veteran for purposes of DIC benefits prior to March [Redacted], 2008, is denied. FINDINGS OF FACT 1. The appellant was legally married to her ex-husband until May [Redacted], 1990. The appellant was unable to enter into a legal marriage or common law marriage prior to this the divorce from her ex-husband. 2. The Veteran and the appellant lived separately from 1999 to 2008. Throughout this period, the Veteran continuously reported that he was either single or divorced. 3. The Veteran and the appellant were legally married on March [Redacted], 2008 in the State of Indiana. 4. The Veteran died on January [Redacted], 2010; his certificate of death list cirrhosis as the primary cause of death, and does not list any conditions as significant contributors to death. 5. The claimed common law marriage between the Veteran and the appellant is not valid for VA purposes prior to March [Redacted], 2008. CONCLUSIONS OF LAW 1. Recognition as the surviving spouse of the Veteran for purposes of DIC benefits prior to March [Redacted], 2008 is not warranted. 38 U.S.C. §§ 103, 1310, 1311, 1318, 5107; 38 C.F.R. §§ 3.10, 3.5, 3.52, 3.53, 3.54, 3.205 2. The criteria for entitlement to supplemental DIC benefits are not met. 38 U.S.C. §§ 103, 1310, 1311, 1318, 5107; 38 C.F.R. §§ 3.10, 3.5, 3.52, 3.53, 3.54, 3.205. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from April 1967 to March 1970. The appellant has been recognized by the VA as the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) as well as a July 2010, January 2011, and June 2019 administrative decision. In April 2018, the appellant testified before the undersigned Veterans Law Judge. The transcript of the hearing is associated with the claims file. The Board issued a remand in July 2018 instructing the RO to provide the appellant a VCAA letter, request a signed statement from appellant concerning her knowledge of common law marriage in Indiana in 1988, request the appellant submit evidence of her common law marriage to the Veteran prior to March 2008, and obtain any outstanding medical records. A remand by the Board confers upon the appellant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO provided the appellant a VCAA letter, obtained outstanding medical records, received signed statements from the appellant, and requested additional evidence from the appellant concerning her common law marriage prior to March 2008. The Board finds the RO substantially complied with the July 2018 remand directives. The claim has returned to the Board for further appellate review. The Veteran and the appellant were married in the State of Indiana in March 2008. The Veteran died in January 2010. After his death, the appellant, his surviving spouse, submitted a claim of service connection for the cause of the Veteran’s death, which was granted in a July 2010 rating decision. In July 2010, the appellant was advised of the award and DIC benefits, which were payable from February 1, 2010. The appellant was awarded benefits pursuant to basic DIC rates set forth in 38 U.S.C. § 1311(a)(1). In a separate July 2010 administrative decision, the RO determined that the March 2008 marriage between the appellant and the Veteran met all the requirements set forth in 38 C.F.R. § 3.52 and was deemed valid. It was noted that the appellant was considered the Veteran’s surviving spouse for all benefits administrated by VA. The appellant contends that she is entitled to an increased rate of DIC and was in a common law marriage with the Veteran beginning in 1988 before legally marrying him in March 2008 in Indiana. DIC is payable to a veteran’s surviving spouse when a veteran die from a service-connected disability. 38 U.S.C. §§ 1310, 1318 (2012); 38 C.F.R. § 3.5(a). The rate of DIC payments is determined under 38 U.S.C. § 1311, which provides that DIC shall be paid to a surviving spouse at the basic monthly rate. 38 C.F.R. § 1311(a)(1). The rate of DIC under paragraph (1) of 38 C.F.R. § 1311(a)(1) shall be increased by an additional allowance ($246.00) in the case of the death of a veteran who at the time of death was in receipt of or was entitled to receive (or but for the receipt of retired pay or retirement pay was entitled to receive) compensation for a service-connected disability that was rated totally disabling for a continuous period of at least eight years immediately preceding death. In determining the period of a veteran’s disability for the purpose of the preceding sentence, only the periods in which the veteran was married to the surviving spouse shall be considered. 38 U.S.C. § 1311(a)(2); 38 C.F.R. § 3.10(f)(1). In VAOPGCPREC 58-91, the General Counsel of VA held that lack of residence in a jurisdiction recognizing common law marriage is not a bar to establishing a common law marriage for a surviving spouse claimant. The rationale is that the common law marriage could be “deemed valid” under 38 C.F.R. § 3.52 on the theory that the surviving spouse could have entered into the purported common law marriage without knowledge of the fact that there was an impediment to the marriage. See also Colon v. Brown, 9 Vet. App. 104, 107-08 (1996). Under 38 C.F.R. § 3.52, 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 also 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 38 C.F.R. § 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. See also 38 U.S.C. § 103(a). A marriage will be deemed valid if the appellant’s signed statement that he or she had no knowledge of an impediment to marriage to the veteran is accepted, in the absence of information to the contrary, as proof of that fact. 38 C.F.R. § 3.205(c). In Indiana, common law marriages are only recognized if established before January 1, 1958. M21-1, Part III, Subpart iii, Chapter 5, Section C, Topic 3.a. The requirement of a formal marriage ceremony by a jurisdiction that does not recognize common law marriage, such as Indiana, constitutes a “legal impediment” to that marriage under 38 C.F.R. § 3.52. See Lamour v. Peake, 544 F.3d 1317, 1322 (Fed. Cir. 2008). The determination of a claimant’s knowledge of a legal impediment is viewed in terms of what the appellant's state of mind was at the time that the invalid marriage was contracted. Id. at 1323 (quoting Dedicatoria v. Brown, 8 Vet. App. 441, 444 (1995)). Here, the Veteran was in receipt of service connection for a disability that was rated totally disabling for a continuous period of at least eight years immediately preceding his death in January 2010. Evidence of record detailed that he had a total disability rating based on unemployability from March 12, 2001. 38 C.F.R. § 3.10(f)(2) (2017). However, a marriage certificate included in the record showed that the Veteran and the appellant married in the State of Indiana in March 2008. Thus, the question to be answered is whether the alleged common law marriage could be established or deemed valid for the appellant whom does not reside ina jurisdiction recognizing common law marriages prior to March 2008. In a November 1998 medical evaluation, it was noted the Veteran was a divorcee who was in a relationship for 11 years at the time of the evaluation. It was noted on a December 1999 medical factsheet that the Veteran was single. During a November 2000 hospital visit, the Veteran reported that he was divorced. His mother accompanied him during the visit. No other family members were listed as being present during the visit. The Veteran reported again that he was divorced during a hospital visit for back pain in January 2001. The Veteran reported that he was currently single during an August 2006 psychiatry assessment. The Veteran also stated that he divorced twice. He was married from 1973-1974 and from 1980-1981. During a March 2007 call, a VA representative called the Veteran to update his status of dependents. The Veteran reported that he was single with two dependents, H. and E. In April 2008 the Veteran submitted an updated Declaration of Status of Dependents (DSD) form to the VA. On the form, the Veteran reported that the appellant was his “new bride” whom is the biological mother of his two daughters. Prior to April 2008, the appellant was not listed as a spouse on DSD forms. Since the July 2018 Board remand, the appellant has submitted several signed statements. In a May 2019 statement, the appellant stated that she and the Veteran moved in together in November 1988 and lived as man and wife. The appellant stated that she and the Veteran were unaware that their marriage would not be recognized by law until years later. They didn’t know that common law marriage wasn’t legal. The appellant explained that she was established in the area prior to their relationship and had everything in her name; therefore, there was no need to change things. The appellant also acknowledged that the 2006 VA medical records were “somewhat” correct because the Veteran and his daughter lived with the Veteran’s mother separately from the appellant until his daughter went to college in 2008. However, the appellants emphasized that there was never a divorce. In a June 2019 statement, the appellant stated that she mistakenly wrote that she and the Veteran were separated from November 1988 to August 1999. The appellant acknowledged that she was legally married to another man from January 1979 to May 1990 but did not live with him. The appellant restated that she and the Veteran considered themselves husband and wife when the Veteran moved out of the home to attend to his ill mother and until his daughter went to college in 2008. In a June 2019 administrative decision, it was held that the common law marriage between the Veteran and the appellant was not valid for VA purposes. This decision was based on the fact that the Veteran and the appellant were not married for 8 years before the Veteran’s death. The evidence did not show that Veteran and the appellant lived together continuously from 1988 until the date of marriage in March 2008. In addition, the appellant did not divorce from her first husband until May 1990; therefore, she was unable to enter in any form of marriage with another person until her divorce was final. Although the Board believes the appellants contention is sincere, the evidence of record does not show that the common law marriage between the Veteran and the appellant was valid. The Veteran and the appellant lived in a jurisdiction that does not recognize common law marriage formed after 1958. Nevertheless, the Board remanded the claim for further development for the submission of evidence to demonstrate their union prior to March 2008. However, the evidence of record conflicts with the contention that the Veteran and the appellant was together in a valid common law marriage from 1988 to 2008. To be defined as a common law marriage within the states that allow it, the two people must: agree that they are married, live together, and present themselves as husband and wife. Common law marriage is generally a non-ceremonial relationship that requires "a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant a fulfillment of necessary relationship of man and wife/spouses, and an assumption of marital duties and obligations." Black's Law Dictionary 277 (6th ed. 1990). Throughout the record, the Veteran reported that he was divorce or single. The appellant acknowledged in her statement that she and the Veteran did not live together continuously throughout the course of their relationship. In addition, the Veteran notified the VA of his new bride in April 2008. Prior to this notification, the Veteran never listed the appellant as a spouse on his VA forms. In view of the foregoing, the evidence does not show that the appellant was legally married to the Veteran for a period of eight years prior to his death; therefore, entitlement to supplemental DIC benefits is denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harris, Attorney Advisor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.