Citation Nr: 20007359 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 15-32 467 DATE: January 30, 2020 ORDER Entitlement to recognition as the surviving spouse for VA Dependency and Indemnity Compensation (DIC) benefit purposes is denied. FINDINGS OF FACT 1. Prior to the Veteran’s death in March 2012, the appellant and the Veteran were divorced. 2. The Veteran and the appellant did not remarry. CONCLUSION OF LAW The criteria for entitlement to recognition of the appellant as the Veteran’s surviving spouse for purposes of DIC benefits have not been met. 38 U.S.C. §§ 103, 1102, 1304, 1310, 1311, 1541 (2012); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the Air Force from May 1961 to June 1967. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran died in March 2012. In March 2019 the appellant presented testimony at a video hearing before the undersigned Veterans Law Judge. This issue was previously before the Board July 2019, when it was remanded for further development, that development was completed, and the case has since been returned to the Board for appellate review. Duties to Notify and Assists Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board finds that there has been substantial compliance with the prior July 2017 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board requested development for state and local records, and records from the VA Office of Inspector General. The RO made several requests to obtain the state and local records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2019). This includes making reasonable efforts to obtain state or local government documents. 38C.F.R. §3.159(c)(1). After the July 2019 Board remand, the RO made requests for state and local records in July 2019, September 2019, and November 2019. Additionally, the RO requested the records from the appellant in July 2019 and September 2019. In the September 2019 letter, the RO notified the appellant what efforts were made to obtain the records and that some of them had not been obtained. 38 C.F.R. § 3.159(e). The Board finds, the VA has made reasonable efforts to obtain the state and local records. Additionally, the Board requested VA Office of the Inspector General records. A May 2017 letter, received in August 2019, indicated there was no open complaint with the VA Office of the Inspector General because the case did not meet the criteria for acceptance. Accordingly, the Board finds there has been substantial compliance with the prior July 2019 Board remand directives. Recognition as the surviving spouse VA benefits may be paid to the surviving spouse of a veteran if certain requirements are met. 38 U.S.C. §§ 1304, 1310, 1311, 1318, 1541 (2012). A surviving spouse is 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) (2012); Haynes v. McDonald, 785 F.3d 614, 616 (Fed. Cir. 2015) (rejecting the argument that the married-at-the-time-of-death requirement should be excused because the divorce was precipitated by the veteran’s abusiveness); Marrero v. Gober, 14 Vet. App. 80, 82 (2000) (holding that the appellant was not the veteran’s spouse because they divorced). A “surviving spouse” status is a threshold requirement for both DIC and death pension benefits. 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) (2012); 38 C.F.R. § 3.1 (j) (2019). VA does recognize “marriages other than by ceremony,” under certain circumstances. 38 C.F.R. § 3.205 (a)(6). However, under 38 C.F.R. § 3.1 (j), a marriage must be valid under the 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 (a). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (noting that the Board may reject such statements of the appellant if rebutted by the overall weight of the evidence). During the March 2019 Board hearing, the appellant stated she and the Veteran never divorced, and continually lived as husband and wife from 1967 until the Veteran died in March 2012. A January 1967 marriage license showed the Veteran and the appellant were married in 1967. A July 1971 declaration of status of dependents indicated the Veteran and the appellant were still married and had two children. In February 1977, the VA sent a letter to the Veteran asking for him to notify the VA if he was separated or divorced. In a March 1977 statement, the Veteran indicated he and his wife were divorced on February 1, 1977In a February 1977 statement submitted to VA, the appellant indicated she and the Veteran were divorced on February 1, 1977 and were living in separate locations. In a May 1977 statement, the Veteran indicated the appellant was remarried and living in Texas. In a June 1977 statement, the appellant stated she was remarried and was requesting support for her minor children. The appellant listed a Texas address on that request. In an October 1979 income-net worth and employment statement, the Veteran stated his divorce was filed in the Circuit Court of Baltimore City and the Veteran provided docket and case number information. In a May 1982 treatment record, the Veteran reported his two children were living with his ex-wife in Texas, who was now separated from her second husband. Additionally, the appellant filed a March 2015 police report alleging fraud in reference to the Veteran’s VA Benefits. A February 2012 VA social work treatment note indicated the Veteran and the appellant were divorced. The treatment provider noted the appellant was listed as the Veteran’s wife in the medical record, but the treatment provider confirmed with the appellant that she and the Veteran were divorce. The appellant stated she and the Veteran lived together and wished to remarry “while he still understands what he is doing.” The appellant indicated the court no longer has a copy of their divorce decree due to the time elapsed since the divorce. The appellant indicated she was concerned about VA survivor benefits, as she and the Veteran have continued to live as man and wife. The Veteran’s March 2012 death certificate listed the appellant as the informant and listed the Veteran’s relationship status as married. The appellant is listed as the Veteran’s wife. In an August 2014 statement, the appellant indicated the February 1977 statement and June 1977 statements with her signature were forged. The Board finds that at the time of the death of the Veteran, he and the appellant were divorced. First, the Board affords significant weight to the Veteran’s March 1977, May 1977, and October 1979 statements. The Veteran indicated he and the appellant were divorced, living in separate places, and provided the relevant docket information for the divorce. Second, the Board affords significant probative weight to the appellant’s February 1977 and May 1977 statements. The statements were consistent with the Veteran’s statements at the time. Third, the Board does not find the appellants statement’s regarding fraud and forgery credible. The February 2012 VA treatment records show the appellant knew she and the Veteran were divorced and was concerned she would not receive VA benefits. The appellant’s August 2014 statement and March 2019 Board hearing testimony are inconsistent with the 1977 and February 2012 statements. The February 2012 statements in the Veteran’s VA treatment records indicated a self-interest to be seen as the Veteran’s surviving spouse for VA benefit purposes. See Caluza v. Brown, 7 Vet. App. 498 (1995); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (noting that the Board may reject such statements of the appellant if rebutted by the overall weight of the evidence). Lastly, the Board does not find the marital status listed in the Veteran’s death certificate credible. The appellant was the informant for the Veteran’s death certificate. As noted, the appellant’s statements have been inconsistent and there is no indication the marital status was independently verified. Accordingly, the most probative evidence of records supports a finding that the Veteran and appellant were divorced at the time of the Veteran’s death. A “surviving spouse” means...a person... whose marriage to the Veteran meets the requirements of § 3.1 (j) and who was the spouse of a veteran at the time of the veteran’s death”; 38 C.F.R. § 3.50(b)(2). Marriage means a marriage valid under the law. See 38 C.F.R. § 3.1 (j). Divorce is defined as a dissolution of the marriage relation between husband and wife. See Ballentine’s Law Dictionary (3rd ed. 2010). The effect of the divorce was to dissolve the marriage. Thus, the appellant no longer meets the requirements of a valid marriage. See 38 C.F.R. § 3.1 (j). The Board has also considered statements that the appellant and the Veteran lived together as man and wife. In an April 2013 statement, the appellant alleged she and Veteran had their marriage renewed on May 1, 1996 and the records were destroyed in a fire in May 2007. A May 2013 VA treatment provider letter indicated the Veteran lived with his wife. In January 2018, five letters were submitted from friends and family members stating the Veteran and the appellant lived as husband and wife. In order to be a surviving spouse, the appellant’s marriage must be 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); Burden v. Shinseki, 727 F.3d 1161, 1164 (Fed. Cir. 2013) (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.”). In her June 2012 application, the appellant reported she and the Veteran resided in Maryland. She has not alleged that the parties lived as husband and wife in any other jurisdiction. The state of Maryland does not recognize common law marriages contracted in the state. See Jennings v. Jennings, 315 A.2d 816, 819 (1974). Therefore, a common law marriage cannot be established under Maryland law. However, VA may still deem a marriage as valid for VA purposes. VA’s General Counsel has held that lack of residence in a jurisdiction recognizing a common law marriage is not necessarily a bar to establishment of a common law marriage for the surviving spouse. VAOPGCPREC 58-91 (June 17, 1991), published at 56 Fed. Reg. 50,151 (1991). This is because under 38 C.F.R. § 3.52, the common law marriage could be “deemed valid” 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. Colon v. Brown, 9 Vet. App. 104 (1996). 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; (b) the claimant entered into the marriage without knowledge of the impediment; (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 U.S.C. § 103 (a); 38 C.F.R. § 3.52. An essential element is that the claimant entered into the marriage without knowledge of an impediment. See 38 C.F.R. § 3.52. In the February 2012 VA treatment, the appellant confirmed that she and the Veteran were legally divorced and not currently married. Notably, the appellant mentioned an intention for she and the Veteran to remarry. The Board affords significant probative weight to the February 2012 statements. They were made prior to the Veteran’s death and were consistent with the Veteran’s statements regarding the divorce. The Board affords no probative weight to the lay statements received in January 2018. Friends and family member are not competent to testify to the appellant’s knowledge of her marital status or her knowledge of a legal impediment. In sum, the Board finds the Veteran and the appellant were legally divorced and there is no evidence the Veteran and the appellant attempted remarriage. One month prior to the Veteran’s death, it is clear the appellant is aware they are legally divorced and have not remarried. The Board finds the Veteran’s statements regarding the divorce probative. Accordingly, entitlement to recognition as the surviving spouse for VA DIC benefit purposes is denied. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bruton, Associate Counsel 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.