Citation Nr: 21075320 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-27 502A DATE: December 20, 2021 ORDER Entitlement to recognition as the Veteran's surviving spouse for the purpose of receiving VA Dependency and Indemnity Compensation (DIC) benefits is denied. FINDINGS OF FACT 1. The Veteran and the appellant were divorced in December 1997. 2. Between the date of the divorce and the Veteran's death, the appellant and the Veteran did not enter into a valid common-law marriage under Georgia state law; remarry; or otherwise hold themselves out as husband and wife. CONCLUSION OF LAW The criteria for recognizing the appellant as the Veteran's surviving spouse for the purpose of entitlement to VA death benefits have not been met. 38 U.S.C. §§ 101, 103, 1102, 1304, 1310, 1541, 5107; 38 C.F.R. §§ 3.1 (j), 3.5, 3.50, 3.52, 3.53, 3.54, 3.102, 3.205. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has verified active duty from June 1972 to June 1975, and August 1989 to August 1992, with additional periods of service. He died in March 2013. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2014 decision by a Department of Veterans Affairs (VA) Regional Office (RO). The appellant and A.S. testified at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2019. A transcript of the hearing is of record. The issue on appeal was previously denied by the Board in August 2020. The appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2021 Joint Motion for Remand (JMR), the Court vacated the Board's August 2020 decision and remanded the claim for action consistent with the terms of the parties' JMR. Entitlement to recognition as the Veteran's surviving spouse for the purpose of receiving DIC benefits is denied. The appellant seeks recognition as the Veteran's surviving spouse for purposes. At the October 2019 Board hearing, the appellant and A. S. testified that she cared for the Veteran prior to his death. The threshold question in this case is whether the appellant is a proper claimant to receive death benefits as the surviving spouse of the Veteran. Governing law provides that benefits may be paid to the surviving spouse of a veteran if certain requirements are met. 38 U.S.C. §§ 1102, 1304, 1310, 1311. A "surviving spouse" 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), and who has not remarried or (in cases not involving remarriage) has not since the death of the veteran lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C. § 101 (3); 38 C.F.R. § 3.50 (b). To qualify as a surviving spouse, the person's marriage to the veteran must meet the requirements of either 38 C.F.R. § 3.1 (j) or 38 C.F.R. § 3.52. 38 C.F.R. § 3.50(b). Under 38 C.F.R. § 3.1 (j), a marriage is defined as "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 U.S.C. § 103 (c). 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 given certain circumstances to include the claimant entered into the marriage without knowledge of the impediment. 38 U.S.C. § 103 (a). On careful review of the record, the Board is unable to find that the appellant meets the specific requirements to qualify as the Veteran's surviving spouse for the purpose of establishing entitlement to DIC benefits. In statements and testimony, the appellant indicated that she cared for the Veteran and she lived with him after their 1997 divorce. She also reported receiving financial support from the Veteran by way of the asset division in their divorce, including alimony payments and portions of his retirement. Here, it is undisputed that the Veteran and the appellant legally divorced in December 1997. To the extent the appellant contends that she and the Veteran were in a common law marriage, common law marriage was not recognized in Georgia during this period. Rather, common-law marriages in the state of must have been entered into prior to January 1, 1997. GA. CODE ANN. §§ 19-3-1.1, 19-3-2. Therefore, a common law marriage cannot be established under Georgia state law. See 38 C.F.R. § 3.1 (j). In the August 2021 JMR, the parties agreed that the Board erred when it did not engage in the additional analysis of considering whether there was an attempted marriage under 38 C.F.R. § 3.52 which could have been "deemed valid" but for the legal impediment to the marriage. In this regard, VA's General Counsel has held in a precedent opinion that an appellant's lack of knowledge that a common law marriage was not recognized by the appropriate jurisdiction is a legal impediment that does not necessarily bar recognition of the marriage for VA purposes. VAOPGCPREC 58- 91 (June 17, 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). The impediment referred to here would be the jurisdiction's non-recognition of a common-law marriage after January 1, 1997. 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 other claimant has been found to be entitled to gratuitous VA death benefits. 38 U.S.C. § 103 (a); 38 C.F.R. § 3.52. There is an obvious legal impediment to a common-law marriage of the appellant and the Veteran, because the State of Georgia does not recognize common-law marriage after January 1, 1997. However, under the "deemed valid" theory the appellant must sufficiently demonstrate that the requirements under 38 C.F.R. § 3.52 are met. Such marriages will be deemed valid only if "it is established by evidence satisfactory" to VA that a putative spouse was unaware of a legal impediment to an otherwise valid marriage. Burden v. Shinseki, 727 F.3d 1161, 1171 (Fed. Cir. 2013). The requirements of 38 C.F.R. § 3.52 for a "deemed valid" marriage are not satisfied in this case. It is unclear whether an attempted marriage occurred one year or more before the Veteran died. On the appellant's May 2013 application for dependency and indemnity compensation (DIC) and death pension benefits (VA Form 21-534), she indicated that her marriage to the Veteran ended in divorce in December 1997. The Board has reviewed the lay statements from the appellant and her hearing testimony; however, she has not provided a specific date as to when another attempted marriage that is one following her legal divorce from the Veteran in December 1997 - is purported to have begun. 38 C.F.R. § 3.52 (a) Even assuming an attempted marriage occurred one year or more before the Veteran died, the probative evidence does not support a finding that the appellant cohabited with the Veteran continuously from the date of such attempted marriage until his death. 38 C.F.R. § 3.52 (c). The appellant has provided conflicting lay statements regarding whether she cohabited with the Veteran continuously from the date of their marriage until his death. The Board observes that information in the claims file since May 2013 consistently reflects that the appellant and the Veteran had the same address. However, on her May 2013 application for DIC and death pension benefits (VA Form 21-534), in response to the question on 'Did you live continuously with the veteran from the date of marriage to the date of his/her death?' the appellant checked the box labeled 'No.' See May 2013 DIC application page 3, Section IV, Question #26. Following issuance of the April 2014 rating decision, the appellant submitted a notice of disagreement in which she explained that she was' always there' to take the Veteran to the VA and, prior to his death, took care of his day to day life making sure that his last days on earth were comfortable. This statement does not suggest there was continuous cohabitation. At the October 2019 hearing before the undersigned, the appellant answered in the affirmative to the VLJ's question regarding whether she and the Veteran remarried after their divorce and continued to live together until his death. The witness testimony of A.S. has been considered, but he did not provide any specific statement regarding whether and during which periods, the appellant and Veteran may have continuously cohabited. A.S. testified that throughout the time that he knew the Veteran, he and the appellant were always as one. A.S. testified that the Veteran depended on her. A.S. further testified that even though they were divorced, the appellant took care of the Veteran; helped to fix his breakfast and made sure that when she got home, he had dinner. He also indicated that both he and the appellant helped to take care of the Veteran, including his transportation needs. Due to the contrary statements from the appellant regarding continuous cohabitation, the Board does not find there is sufficiently credible evidence regarding whether the Veteran and appellant continuously cohabitated from the time of an attempted marriage which may have occurred sometime prior to his death. For these reasons, there is a sufficient basis for the Board to find that the appellant and Veteran had not attempted to enter into a common law marriage at the time of the Veteran's death. Finally, in order for the appellant to be successful under the foregoing "deemed valid" theory, the evidence must satisfy the threshold criteria for a common law marriage superimposed by 38 C.F.R. § 3.205 (a)(6); namely, 1) that there was an agreement between the appellant and the Veteran to be married following their legal divorce in December 1997; 2) that there was cohabitation between the parties; and 3) that the parties held themselves out as husband and wife and were generally accepted as such in the communities in which they lived. The appellant and Veteran in this case did not appear to hold themselves out as married at the time of the Veteran's death. In correspondence received in 2015, and at the hearing before the undersigned, the appellant stated that she was entitled to and receiving half of the Veteran's pension benefits up until his death. The Board finds that the payment of alimony from one party to another by order of a divorce decree is inconsistent with either party representing themselves as married or with the belief that they were married. A.S. testified at the October 2019 that the appellant assisted the Veteran greatly before his death and he depended on the appellant's assistance. A.S. did not indicate, however, that he knew the appellant and the Veteran to be husband and wife, rather he affirmatively acknowledged that he was aware they were divorced. During the hearing, the appellant was asked whether she had additional testimony regarding why she should be found legally entitled to the benefits sought and replied, No, that's about it, you know. Because I took care of him, you know, and we were just like we were still married again, you know. We just couldn't -- we just couldn't make it, because he just did adultery and we just kind of broke up. At the end, we had to wind up taking care of him. The Board also observes that while the appellant, at times, identified herself as the Veteran's surviving spouse since she filed her claim for benefits, she also has identified herself as his 'former spouse' and 'ex-wife.' On an April 2013 Application for Burial Benefits (VA Form 21-530), the appellant included her signature and identified herself as the "ex-spouse" of the Veteran. In correspondence received in 2015, the appellant stated that she was receiving alimony from the Veteran prior to his death. She also stated, "Yes, we were divorced but we were very close." Additionally, in June 2016 VA Form 9, the appellant indicated that as an 'ex-wife' the only reason for their divorce was due to the Veteran's desertion of herself and their child, his adultery and having fathered a child with another woman. These statements reflect acknowledgement of the dissolution of a prior marriage and that the appellant was aware that she was no longer the Veteran's spouse. The Board has considered the evidence of record, including that which was presented by the appellant in support of her appeal. The probative evidence does not, however, support finding the Veteran and the appellant had entered into either a legal marriage or a valid common law marriage after their formal divorce in December 1997, nor were they in an attempted common law marriage, which could have been "deemed valid" but for a legal impediment to the marriage under 38 C.F.R. § 3.52 at the time of the Veteran's death. The Board is sincerely grateful for the honorable military service provided by the Veteran. The Board is also sympathetic to the appellant's claim and her efforts to care for the Veteran at the end of his life. Notwithstanding the foregoing, the appellant does not meet the legal criteria for recognition as the Veteran's surviving spouse. Accordingly, the appeal for entitlement to recognition as the Veteran's surviving spouse must be denied. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.