Citation Nr: 21009844 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-18 870 DATE: February 23, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to recognition as the Veteran’s surviving spouse for the purpose of receiving Department of Veterans Affairs (VA) death benefits, and the request to reopen is granted. Entitlement to recognition as the Veteran’s surviving spouse for the purpose of receiving VA death benefits is denied. FINDINGS OF FACT 1. The appellant has submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to recognition as the Veteran’s surviving spouse for the purpose of receiving VA death benefits. 2. The Veteran and the appellant married in November 1969. 3. The Veteran and the appellant divorced in June 1982. 4. The Veteran died in June 2001. 5. The Veteran and appellant resided in Alabama at the time of his death. 6. At the time of the Veteran’s death, common law marriage was valid in the State of Alabama. 7. Clear and convincing evidence does not show that the Veteran and appellant had entered into a common law marriage at the time of the Veteran’s death. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to recognition as the Veteran’s surviving spouse for the purpose of receiving VA death benefits. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.156, 20.1100. 2. The criteria for recognizing the appellant as the surviving spouse of the Veteran for VA purposes have not been met. 38 U.S.C. §§ 101 (3), 103, 1310; 38 C.F.R. §§ 3.1 (j), 3.50, 3.54, 3.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1961 to December 1963. He died in June 2001. This matter comes before the Board on appeal from a June 2014 Regional Office (RO) administrative decision. In June 2018, the appellant testified at a hearing before the undersigned Veterans Law Judge. In May 2019, the Board found that new and material evidence had not been received to reopen the appellant’s claim of entitlement to recognition as the Veteran’s surviving spouse. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In a March 2020 Order, the Court granted the parties’ March 2020 Joint Motion for Remand (Joint Motion), which vacated the May 2019 Board decision and remanded the claim to the Board for additional development and readjudication. The claim has been returned to the Board for adjudication consistent with the terms of the Joint Motion. 1. New and material evidence has been received to reopen the claim of entitlement to recognition as the Veteran’s surviving spouse for the purpose of receiving VA death benefits, and the request to reopen is granted. In May 2009, the Board found that the appellant was not the Veteran’s surviving spouse for purposes of receiving VA death benefits. The May 2009 Board denial is final and, therefore, new and material evidence is required in order to reopen this claim. Unless the Chairman of the Board orders reconsideration or one of the other exceptions to finality applies, all Board decisions are final on the date stamped on the face of the decision. 38 C.F.R. § 20.1100; see 38 U.S.C. §§ 511(a), 7103(a), 7104(a). A final decision cannot be reopened unless new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; see also Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the evidence is presumed credible unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board notes that the March 2020 Joint Motion remanded this claim after determining that the Board erred when it did not consider whether a December 2014 letter from “Legal Services of Alabama” constitutes new and material evidence to reopen the claim. It specifically notes that “This letter is authored by DH, a ‘Call Center Managing Attorney,’ who, after summarizing Appellant’s report of the factual history surrounding her relationship with the Veteran, concluded that ‘[i]n my opinion-that is based upon the information [the Appellant provided] – it is likely that [Appellant] had a valid common law marriage in Alabama.’” The Board has reviewed the December 2014 letter. It notes that this evidence constitutes a legal opinion from an attorney who presumably possesses the necessary qualifications to listen to the appellant’s statements and apply them to the laws concerning Alabama common law. The Board thus finds that this new opinion is material to establishing a valid common law marriage. Thus new and material evidence having been received, the claim of entitlement to recognition as the Veteran’s surviving spouse for the purpose of receiving VA death benefits is considered reopened. The Board will next adjudicate the claim on the merits. 2. Entitlement to recognition as the Veteran’s surviving spouse for the purpose of receiving VA death benefits is denied. For the appellant to be eligible for VA death benefits the evidence must demonstrate she was the surviving spouse of the Veteran at the time of his death. The term “surviving spouse” means 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 the case not involving marriage) 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. Under 38 C.F.R. § 3.50(b), a surviving spouse means a person whose marriage to the veteran meets the requirements of § 3.1(j) and who was the spouse of the veteran at the time of the veteran’s death, and (1) 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 § 3.55, has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of such other person. Under 38 C.F.R. § 3.53(a), the requirement that there be continuous cohabitation from the date of marriage to the date of death of the veteran will be considered as having been met when the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. Temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation. For purposes of establishing proof of a common-law marriage, the supporting evidence should include 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 husband and wife, and whether they were generally accepted as such in the communities in which they lived. 38 C.F.R. § 3.205(a)(6)-(7). In determining whether a marriage is valid, the law of the place where the parties resided will be applied. 38 C.F.R. § 3.1(j). As the parties in the case at hand resided in Alabama, the laws of that state are applicable. The State of Alabama recognizes common law marriage. To establish a common law marriage in Alabama there must be (1) capacity (both spouses must be at least 14, mentally competent, with no legal impediments to the marriage), (2) a present agreement or mutual consent to enter into the marriage relationship, permanent and exclusive of all others, (3) a public recognition of the existence of the marriage, and (4) cohabitation or mutual assumption openly of marital duties and obligations. Cochran v. Chapman, 81 So. 3d 344, 346 (Ala. Civ. App. 2011) (citing Gray v. Bush, 835 So. 2d 192, 194 (Ala. Civ. App. 2001)); Adams v. Boan, 559 So. 2d 1084, 1086 (Ala. 1990). In Mattison v. Kirk, 497 So.2d 120 (1986), the Alabama Supreme Court noted that proof of agreement to enter into a common law marriage could be inferred from the circumstances such as cohabitation and reputation. The Alabama Supreme Court has observed, however, that courts closely scrutinize claims of a common law marriage and require clear and convincing proof of such a marriage. Reynolds v. Scott, 60 So.2d 690 (1952); see also Buford v. Buford, 874 So.2d 562, 564 (2003); Gray v. Bush, 835 So.2d 192, 194 (2001). The “clear and convincing evidence” standard is more onerous than the “benefit of the doubt” standard of proof usually employed in VA benefits adjudication, as established in 38 U.S.C. § 5107(b). The United States Court of Appeals for Veterans Claims has upheld the Board’s use of a clear and convincing standard of proof in determining whether a common-law marriage existed between two parties when that standard is in fact required by the jurisdiction within which the parties claim a common law marriage existed. See Burden v. Shinseki, 25 Vet. App. 178, 186 (2012). The appellant in this case must therefore provide clear and convincing proof of a common law marriage to the Veteran. Turning to the evidence of record, a Certificate of Marriage reflects that the appellant and the Veteran were married in the State of Alabama on November [REDACTED], 1969. On June [REDACTED], 1982 a Final Judgment of Divorce terminated this marriage. The appellant contends that, subsequent to their divorce, she and the Veteran entered into a common law marriage. She has asserted they then lived together continuously until the Veteran’s death. In the alternative, she has stated they did not reside together through no fault of the appellant as the Veteran had an alcohol and drug problem which caused him to be violent on occasion. For that reason the appellant and the Veteran lived separately. In July 1982, the Veteran submitted a VA Form 21-686, “Declaration of Marital Status,” on which he reported that he and the appellant had divorced in June 1982. In July 1982, the appellant filed a claim for an apportionment of the Veteran’s VA benefits on behalf of their six children. She identified herself as “the mother of the above captioned Veteran’s (6) children.” She stated that the court had awarded her $300 per month in child support and that the Veteran was failing to meet these payments. In August 1982, letters went out to the Veteran and the appellant at different addresses. She listed her address as being on [REDACTED], which is where she lived prior to the June 1982 divorce and where she continues to reside. A May 1983 Report of Contact notes the Veteran’s address as a PO Box number on [REDACTED]. It notes that the Veteran’s April 1983 compensation check (which had been sent to the [REDACTED] address) had been returned by the Post Office. The Report of Contact directs the Veteran’s address be changed and the check be re-released. It notes that the Veteran reported that “If it goes to the old address, it should also be okay at this time. He will get it either way.” In May 1983, the appellant filed another claim for an apportionment of the Veteran’s check on behalf of their six children. She stated that the court had awarded her $300 per month in child support and that the Veteran was failing to meet these payments. She also noted that the Veteran “has moved to Montgomery.” Letters were sent out to the Veteran and the appellant at different addresses. In responding to the apportionment claim, the Veteran submitted a statement stating that “I live alone.” In an October 20, 1983, substantive appeal to an apportionment decision, the appellant referred to herself as the Veteran’s “wife” and referred to the Veteran as her “husband.” In a November 1983 personal statement, the Veteran stated that “I do not wish to contest my ex-wife’s request for apportionment.” A January 1984 special apportionment decision notes that the appellant’s relationship to the Veteran is “[f]ormer wife.” The record contains a June 1984 Order from the District Court of Pike County, Alabama, concerning a petition to show cause for non-payment of child support and stating that the appellant and the Veteran had reached an agreement on the payment of child support. It continues the suspension of a 30-day jail sentence on the condition that the Veteran pay $125 per month for child support beginning in July 1984. The record contains a June 1985 Order from the District Court of Pike County, Alabama, concerning a petition to modify the payment of child support based on a determination that the Veteran was able to pay an increased amount in child support. The Order states that the Veteran’s previous jail sentence was to continue suspended on the condition that the Veteran pay $75 per month beginning in July 1985. (The increase in the Veteran’s child support obligation to $75, when it had been $125 per month at the time of the June 1984 Order, suggests that there had been one or more other Orders between the June 1984 Order and the June 1985 Order. However, any such Orders are not of record in this case.) The record also contains an October 1987 Order from the District Court of Pike County, Alabama, dismissing a Contempt Petition for Non-Payment of Child Support that the appellant had filed against the Veteran and ordering the Veteran to pay child support in the amount of $65 per month that had been agreed to by the Veteran and the appellant. On copies of the VA Form 21-8947, Compensation and Pension Award, dated in October 1985, May 1986, June 1986, March 1987, August 1987, January 1988, February 1988, May 1988, April 1990, January 1991, August 1992, May 1994, October 1994, November 1995, August 1997, November 2001, and January 2002, and pertaining to the Veteran’s VA benefits, the space in which the “NAME OF SPOUSE” is to be listed is empty. A March 1990 VA hospitalization summary report reveals that the Veteran reported he was divorced and lived with his grandmother. The record contains a “State of Alabama, Child Support Enforcement Division, Court Order Payment Summary,” listing the amounts of child support that the Veteran had paid from July 1990 through November 1992. In a January 1991 “Status of Dependents Questionnaire,” the Veteran stated he was not married and that his children lived at the same address as the appellant. At that time, the Veteran had a different address than his children and the appellant. On an April 1994 VA Form 21-4138, “Statement in Support of Claim,” the appellant stated that she was the “ex-wife” of the Veteran. A May 1995 VA hospitalization summary report shows that the Veteran reported that he lived alone. In a VA Form 21-4138, “Statement in Support of Claim,” received in March 1997, the appellant stated she had heard the Veteran had received back payments for VA compensation on behalf of their son and believed her son should receive back payments. She referred to the Veteran as “the father of our child.” A February 1998 VA examination report shows that the Veteran had a different address than the appellant. Additionally, a letter to the Veteran regarding a hearing date, mailed in October 1998, shows a different address than that of the appellant. An August 1999 VA outpatient treatment report shows that the Veteran reported he was “recently divorced.” The Certificate of Death indicates the Veteran died in June 2001. The appellant is listed as his surviving spouse and the Veteran is listed as being married. The Veteran’s address is listed as the [REDACTED] address, which is also the appellant’s address. The Certificate of Death indicates the appellant supplied the information reflected on the Certificate of Death, as she was listed as the “informant.” A July 2001 Report of Contact shows that the Veteran died in June 2001. The appellant was listed as the next of kin and her relationship to the Veteran was noted as his “wife.” The address shown for the appellant is the one she has lived at since she and the Veteran divorced in 1982. The appellant and the Veteran lived at this address prior to their divorce. The appellant still lives there. In July 2001, the appellant submitted a VA Form 2008, “Application for United States Flag for Burial Purposes,” on which she identified herself as the Veteran’s “widow.” She also paid the Veteran’s funeral expenses and identified herself to the funeral home as the “wife” of the deceased. Before describing the appellant’s contentions in more detail, the Board will summarize the evidence of record concerning the Veteran’s address. From August 1980 until the Veteran and appellant’s divorce in June 1982, the record reflects that the Veteran and VA variously identified his address as being on “[REDACTED]” and/or “[REDACTED].” The [REDACTED] address is listed through January 1983. Following the Veteran and appellant’s divorce, the record reflects that both VA and the Veteran identified the Veteran’s address as being either of these two addresses. The [REDACTED] address is listed as having been used through March 1983, while the [REDACTED] PO Box address is listed through November 1985. A May 1983 Report of Contact notes that the Veteran’s April 1983 compensation check was returned by the Post Office. The VA employee who authored the Report of Contact directed that the Veteran’s address be changed and that the check be re-mailed. The address change was from the [REDACTED] address, as the [REDACTED] address was crossed out from a March 1983 letter replaced with the [REDACTED] PO Box address and was mailed in May 1983. The Board notes that the [REDACTED] address was not used following the Report of Contact. The Report of Contact notes that “If it goes to the old address, it should also be okay at this time. He will get it either way.” This notation suggests that the Veteran was still in contact with the appellant, even if he was no longer living with her. However, the Veteran had affirmatively decided to obtain and notify VA of his own mailing address separate from that of the appellant. From June 1986 through May 1988, the Veteran’s VA correspondence was sent to an address on “[REDACTED].” From May 1983 to November 1985, both VA and the Veteran exclusively identified the Veteran’s address as being a PO Box on [REDACTED]. The Veteran’s physical address is unclear at this time. In May 1983, the appellant informed VA that the Veteran “has moved to Montgomery.” It is unclear whether he was living in Montgomery when he was receiving mail at the PO Box on [REDACTED]. The Veteran’s mail was sent to the PO Box on [REDACTED] from May 1990 to January 1991. The Veteran’s correspondence was sent to an address on [REDACTED] from August 1992 to October 1994. The Veteran and VA identified the Veteran’s mailing address as being on [REDACTED] from January 1995 to April 1995. The Veteran and VA identified the Veteran’s mailing address as being on [REDACTED] from November 1995 to March 1998. A Board decision was mailed to this address in January 1999. The Veteran’s correspondence was sent to an address on [REDACTED] from December 1998 to April 1999. Undated VA medical records list this address as the Veteran’s “permanent address.” Other than the March 1983 letter, which was subsequently sent to the [REDACTED] PO Box, there is no indication that the Veteran did not receive any of the letters that were sent to him by VA, as none of these letters was returned as undeliverable, and he responded to any VA solicitations for information and attended any scheduled VA examinations (of which he was notified by mail). In July 2001, VA received a Notice of Death phone call from a representative of the “VSO Pike Co.” In this phone call, the Veteran’s address was listed as the [REDACTED] address. A July 2001 funeral bill showed that the appellant was responsible for the payment of the funeral services and that her relationship to the deceased was “wife.” The death certificate indicates that the Veteran was “married” to the appellant at the time of his death and that his address was the same as the appellant’s address. In a July 2001 statement, A.R. stated that “I know for a fact that [the appellant] and [the Veteran] were together in 1995, 1996 until his death June [REDACTED], 2001.” A July 2001 statement from B.C. indicates that the Veteran and the appellant had lived together since 1995 until the Veteran’s death. In the appellant’s application for benefits, received in July 2001, she stated that she and the Veteran “were divorced but reunited in 1995.” She reported that she cared for him until his death. The Veteran was an alcoholic. This had caused the divorce. She had taken care of him as there was no one else who could take care of him. A September 2001 statement from A.R. indicates the appellant and the Veteran had been together for the past 35 years and had six living children. They lived in the same neighborhood. A September 2001 statement from I.S. states they had lived in the same neighborhood with the Veteran and appellant. The appellant submitted the Veteran’s funeral service pamphlet, which states that the Veteran had passed away leaving his wife (the appellant) and their six children. In September 2001, the appellant provided a history of her relationship with the Veteran. They had lived together prior to getting married. They had eight children. (The Board notes that two of their children had passed away.) In 1972, she and the Veteran separated four times as a result of his drinking. He had physically abused her and threatened her with a gun. In March 1975, they separated again after he had come home drunk. The appellant stated he had beaten her up so badly she finally moved out. She allowed him to move back in 1977 and the Veteran began physically abusing her again in 1979. In 1982, she was told that her health was failing due to the brutal beatings to her head, face, neck, throat, and stomach. She was suffering from stress, which continued in 1991 and 1992. She noted that, in 1995, she and the Veteran “still lived together” and that the Veteran was “in and out of” the home. In 1999, the Veteran had undergone open heart surgery and he had stayed with their son due to the convenience of the location of the house to the hospital. She concluded her statement by asserting that she and the Veteran had “lived together continuously from the date of our marriage [on] November [REDACTED], 1969, until the date of his death” in June 2001. In December 2001, the appellant submitted a statement asserting that “The reason for divorce was that the Veteran was abusing me. It did not change the status. We continued to live together for many years thereafter.” She noted that “The Veteran would come and go as he pleased.” A December 2001 statement from B.M. indicates the appellant and the Veteran had moved to her street in 1981 and that they had lived there in the house together until the Veteran died in June 2001. She had seen the appellant taking the Veteran to doctor’s appointments and other places. She stated the appellant would get her hair done at the appellant’s house and the Veteran would be in the house. In a December 2001 statement, P.M. noted that she had known the appellant and Veteran since 1980 and that the appellant has “been a good wife to [the Veteran].” She noted that the appellant “went [through] a lot before she decide[d] that, she just need[ed] to get a divorce[], but even after the divorce, she still remain[ed] [being] a wife to [the Veteran].” She noted that the Veteran “still came and went whenever he please[d],” but noted that the appellant was “by his side” until his death. She noted that “When anything happen[ed] they would always call her.” She noted that the Veteran “just could not be a husband, nor a dad.” She noted that the appellant “took [the Veteran] to the doctor when he need[ed] to go. She had to pay myself sever[al] times to take her back and forward to the hospital, because he would not take care of himself.” In a December 2001 statement from their daughter, A.C. wrote that her parents had lived together continuously until the Veteran’s death. She stated the Veteran lived with her mother despite his “unorthodox lifestyle.” She noted that “The fact that my parents were married and produce[d] several offspring is common knowledge.” She noted that the Veteran “always came and went as he pleased, but that does not change the fact and he and my mother continued living together until his death.” She noted that her mother “spent her pre-adult and entire adult life with a man, married, him, conceived and birthed 7 or 8 children with her husband, took care of him in sickness and in health and the buried him.” In a December 2001 statement, I.C., their son, reported the Veteran and the appellant had lived together even after their divorce and that it was not uncommon for the Veteran to go off and stay elsewhere for days. The Veteran would come home to bathe and to get a fresh change of clothes. Her son said the appellant never stopped taking care of the Veteran even after their divorce. In an April 2002 statement, the appellant recalled that in 1980, she and the Veteran moved into the house in which she currently lived and soon thereafter, the Veteran began beating her again. She had to call the police almost every weekend. The appellant asserted she filed for divorce, which became final in 1982. She stated they were separated for a short period of time but that her love for him was so deep that she allowed him to come back home. The Veteran would leave for up to two weeks and return home without any money. When the Veteran was sick, she would treat him until he was well again. In an August 2002 statement, the appellant stated that she and the Veteran divorced in 1982 due to many years of domestic abuse. She stated that in the last part of 1995, she and the Veteran began healing, but that the Veteran’s health was not good. The appellant asserted that they ate together, slept together, and still loved each other. She stated that she was there for the Veteran when he needed her and that the last thing she did for him was bury him. In an August 2002 statement, the Veteran’s cousin, I.H., stated that the Veteran and the appellant were married and living together for “many, many years.” The Veteran had a drug and alcohol problem, but the appellant had stuck by him until his death. In a September 2002 statement, L.A. stated that the Veteran and the appellant had lived up the street from her and noted that “they were married and lived together as husband and wife.” She was aware the Veteran had an alcohol problem, which caused a great deal of “mental and emotional pain” for the appellant. She noted that the appellant and the Veteran “remain[ed] together until his death; even though they were divorced [the appellant] still remained a faithful wife to [the Veteran].” In an October 2002 statement, the appellant asserted that whenever the Veteran needed to go to the hospital that she would take him. She expressed frustration with VA’s finding that she and the Veteran did not have a common-law marriage after their divorce in 1982. The appellant stated that regardless, she and the Veteran were married following their divorce, as the Veteran continued to live with her. She stated that her name is on the Veteran’s death certificate and the obituary as his wife because she and the Veteran remained husband and wife even after they divorced. In December 2002, the appellant testified at a hearing before an Acting Veterans Law Judge. She testified she had lived with the Veteran both prior to their marriage and following their divorce. She filed for divorce because of physical abuse, which had gone on for years. Her children were afraid of the Veteran. The appellant testified she “always” kept the Veteran’s name on her checking account. She took care of the Veteran because he was the father of their children and her husband. The appellant noted that she was there for the Veteran when he needed her, including at the time of his death. She stated that from 1982 to the time of the Veteran’s death, they maintained one residence and held themselves out as husband and wife. She noted that while the Veteran was on her checking account, he was not allowed to withdraw funds because of his drug and alcohol problem. In a May 2003 statement, G.G. wrote to “verify that [the appellant] and [the Veteran] lived as man and wife.” In a March 2012 statement, A.D.Y. stated that the Veteran resided with the appellant on [REDACTED], not on “Mincer Street,” and that he resided there until his death. In a September 2014 statement, the appellant stated that she divorced the Veteran because of the severe abuse that she and their children had suffered at the hands of the Veteran, but that she did not stop being his wife and taking care of him. She stated that she did her best to take care of him and kept taking him back, even when she said she would not. She also described the Veteran’s drug and alcohol abuse. As noted above, the appellant submitted a December 2014 letter from Legal Services Alabama. The attorney whom the appellant consulted noted that, “As I understand your situation, you and [the Veteran] married in 1969 and divorced in 1982[.] Even after the divorce you continued to live together on and off through the years[.] In 1998, [the Veteran] lived with you continually until his death in 2001.” With respect to common law marriage, the attorney noted the following: Alabama recognizes common law marriage[.] A common law marriage is a legal marriage in Alabama. The law relating to common law marriage says that if the below are met, you are considered to be married[:] (1) A man and a woman are capable of marrying each other, (2) They intend to be married and consider themselves married to each other, (3) They live together as husband and wife and engage in sexual intercourse and (4) They present themselves to society as husband and wife[.] Once a common law marriage is established, it remains in effect, just like a ceremonial marriage, until one of the parties dies or the marriage is dissolved by divorce[.] The attorney then reviewed the facts of the appellant’s case and applied the law pertaining to Alabama common law marriage: Based upon the information you provided me, I will review the criteria based on your situation[.] Both you and [the Veteran] had the capacity to be married after the divorce[.] You were both over the age of 19, were not married to anyone else and there was no mental reason you could not marry[.] You told me that after the divorce, you continued to live together and at some point considered yourselves married to each other[.] You lived together as husband and wife in every way[.] You explained that there were times during the years that he would get violent and you would make him go stay somewhere else but he always returned to live with you[.] You stated that you presented yourselves to the public as husband and wife – in fact many people didn’t even know that you filed for a divorce in the past[.] You also stated that after the divorce you had [the Veteran] on your health insurance and listed him as your spouse[.] While he was in and out of the hospital, the medical staff considered you his wife and he introduced you as his wife[.] The funeral arrangements were made mostly by you and there was documentation listing you as his surviving spouse[.] The attorney stated that, “In my opinion- that is based upon the information you provided me- it is likely that you had a valid common law marriage in Alabama[.]” The appellant and two daughters testified at a June 2018 hearing. To summarize, the appellant testified that, “[a]fter the divorce, my husband still resided with me and the children. He said he was going to do better, and we stayed together. He was still off into his habits.” (See Board hearing transcript, page 3.) In her May 2014 claim, she noted that she and the Veteran “were married, then divorced, however, we lived together as man and wife until his death in 2001.” One of the appellant’s daughters testified that “[t]he divorce was just a piece of paper. At that time, it did not separate their relationship.” (See Board hearing transcript, page 10.) The appellant explained that the Veteran had many addresses but that he “did not stay at those places. They were shot houses and that’s why he owed people for drugs.” (See Board hearing transcript, page 4.) The appellant’s daughters corroborated this testimony. In a June 2018 written statement, the appellant noted that her claim for apportionment (on behalf of her children) was denied in the 1980s but was only granted when she wrote that she was the Veteran’s ex-wife in 1994. Prior to that time, she stated, she identified herself as “the mother of the children [of the] Veteran.” The appellant submitted a personal statement in June 2019 in which she responded to the (now vacated) May 2019 Board decision. In relevant part, she expressed her disagreement with the Board’s assertion that the Veteran had lived in a different house for 19 years. She also noted that the Veteran had told VA that he and the appellant were in a common law marriage after the divorce. She also noted that, because she and the Veteran were living together, she took care of everything after the Veteran passed away. In a May 2020 statement, the Veteran’s accredited representative noted that the appellant “asserts that she and the veteran reconciled after their 1982 divorce and were in a common law marriage beginning in 1995.” In support of this claim, the representative notes that “The death certificate reports that [the Veteran] lived at [the [REDACTED] address,] the same address as his surviving spouse, [the appellant].” The representative also noted that “A funeral announcement declared that he was survived by [the appellant], his wife.” The statement also notes that the appellant “was invoiced by the funeral home for expenses related to [the Veteran’s] funeral.” In addition, “Prior to his death, she was listed as a point of contact for [the Veteran], when he was admitted to the hospital in July 2001.” The representative also referenced the many lay statements that have been submitted in connection with this claim, noting that “Several neighbors wrote that they lived together, and two adult daughters described living with [the Veteran and the appellant] as their parents lived in an abusive and violent relationship.” The statement noted that “An Alabama attorney … stated in a December 2014 letter that [the Veteran and the appellant] likely lived in a common law marriage.” The record also contains a June 2020 statement from P.C., the appellant’s sister. She stated that the Veteran and the appellant “lived together as husband and wife, under the same roof(s), including their home at [South 3 Notch Street] from the time he was discharged from the U.S. Army until the date of his death on June [REDACTED], 2001. [The appellant] buried her husband.” She described the violence and the abuse that the appellant suffered at the hands of the Veteran. She noted that “It was so bad that [the appellant] told me she divorced him, but they still stayed in the same house, under the same roof as husband and wife. [The Appellant] knew that [the Veteran] was suffering, she loved him, and still took care of him until he died.” In an August 2020 statement, the appellant’s accredited representative noted that the appellant “asserts that she and the veteran reconciled after their 1982 divorce and were in a common law marriage beginning in 1995.” In addition to the contentions made in the May 2020 statement, the August 2020 statement notes that they both “have used the same phone number … demonstrating cohabitation,” stating, “For example, [that] an August 1995 radiology report from [a private medical center] indicates that [the Veteran] provided [the phone number that was cited by the representative] as the best way to contact him. [The appellant] also used [the same phone number] as her phone number, as evinced by a June 1996 VA 21-674 Request for Approval of School Attendance.” With respect to the appellant having paid the Veteran’s funeral expenses, the representative noted that “An impoverished woman in poor health would unlikely pay for the funeral expenses of someone with whom she did not have a marital relationship.” The representative further noted that the Veteran “did not update his records with the VA, but that does not negate the veracity of [the appellant’s] assertions that they remained together, as husband and wife, and these assertions are corroborated by supporting evidence.” The representative emphasized the volatile nature of their relationship, noting that “It is without dispute that [the Veteran] struggled with substance abuse and that he was a deeply flawed man.” He noted, however, that the Veteran and the appellant “lived together, and she took care of [the Veteran] in the last several years of his life, doing the best that she could.” The representative concluded by noting that “Loyalty, love and forgiveness are the foundation of any long-lasting relationship, and [the appellant] has been urging the Department of Veterans Affairs to recognize, these elements are present throughout their years together.” The Board will now consider whether the evidence clearly and convincingly establishes that the Veteran and the appellant had entered into a common law marriage at the time of the Veteran’s death. As noted above, the elements of a common law marriage in the State of Alabama are as follows: (1) capacity (both spouses must be at least 14, mentally competent, with no legal impediments to the marriage), (2) a present agreement or mutual consent to enter into the marriage relationship, permanent and exclusive of all others, (3) a public recognition of the existence of the marriage, and (4) cohabitation or mutual assumption openly of marital duties and obligations. Cochran v. Chapman, 81 So. 3d 344, 346 (Ala. Civ. App. 2011) (citing Gray v. Bush, 835 So. 2d 192, 194 (Ala. Civ. App. 2001)); Adams v. Boan, 559 So. 2d 1084, 1086 (Ala. 1990). The Board finds that the first element to establish a common law marriage, “capacity (both spouses must be at least 14, mentally competent, with no legal impediments to the marriage),” is clearly and convincingly established. There is no question that both parties were well over 14 years or age and were mentally competent at the time that the appellant contends they entered into a common law marriage. Nor were there any legal impediments to such marriage. The Board must find, however, that the appellant has not clearly and convincingly established the second element of a common law marriage: “a present agreement or mutual consent to enter into the marriage relationship, permanent and exclusive of all others.” As described above, the record contains statements from friends and family members of the Veteran and the appellant testifying that the Veteran and the appellant lived together and conducted themselves as if they were husband and wife. These lay statements describe a relationship between the appellant and the Veteran. Statements attest that the Veteran and the appellant either lived together continuously after the time of their divorce until the Veteran’s death or lived together with brief periods of separation while the Veteran went away. The appellant accepted that this living arrangement was part of an “unorthodox lifestyle” that was fueled in part by substance abuse rather than as an indication that they did not live together. A few of the lay statements note that the Veteran and the appellant were divorced but state that they were still together and that she, nonetheless, acted as a wife to him. Statements from the appellant, her representative, and friends and family members characterize the appellant as a loving, supportive partner to the Veteran who took care of the Veteran until his death. These statements describe specific ways in which the appellant cared for the Veteran, even after their divorce, including taking him to medical appointments, acting as his emergency contact, and handling and paying for his funeral arrangements. In addition, the appellant was listed as the Veteran’s surviving spouse on his death certification and was designated as the Veteran’s wife on the funeral announcement. This evidence weighs in favor of finding that a common law marriage existed between the Veteran and the appellant. However, the Board finds that this evidence does not satisfy the high burden of clear and convincing proof that the Veteran and the appellant had entered into a common law marriage. With respect to the above, the Board observes that, while the above evidence demonstrates that the Veteran and the appellant had a relationship and that they were a regular part of each other’s lives, a relationship does not demonstrate a marital relationship. The fact that the appellant took care of the Veteran demonstrates a relationship, but it does not prove that they believed they had entered into a marital relationship. The fact that the Veteran had given the appellant’s phone number as his point of contact indicates a relationship, but it does not demonstrate a marital relationship. The fact that the appellant paid for the Veteran’s funeral expenses indicates a relationship, but it does not demonstrate a marital relationship. One issue in this case has been whether the Veteran and the appellant were living together at the time of his death. As has been noted, the [REDACTED] address, which has been the appellant’s address throughout the relevant period, was last listed as the Veteran’s address in March 1983. In May 1983, the Veteran phoned VA to report that he had not received his latest benefit check. During this call, he changed his mailing address but noted that, “If [the check] goes to the old address, it should also be okay at this time. He will get it either way.” His changing of his mail address strongly suggests that the Veteran was no longer living at [REDACTED]. None of the letters that were subsequently sent to other addresses were returned as undeliverable, and the Veteran responded to all mailings as appropriate (such as requests for financial information or to appear at a VA examination). The Board must find the fact that he did not use the [REDACTED] as his mailing address during the last 18 years of his life weighs against a finding that he and the appellant were living together, and thus weighs against finding that they believed they had entered into a common law marriage. The appellant has explained the frequent address changes by noting that the Veteran had many addresses but that he “did not stay at those places. They were shot houses and that’s why he owed people for drugs.” (See Board hearing transcript, page 4.) The Board finds it unpersuasive that the Veteran would have updated his VA mailing address to a series of shot houses rather than having his mail sent to the [REDACTED] address had it been his primary home. The Board further notes that he used some of these addresses for years, which weighs against the suggestion that he “did not stay at those places.” As noted above, the appellant’s accredited representative noted in an August 2020 statement that the Veteran “did not update his records with the VA.” It is unclear from the context of this statement the records to which the representative is referring, as the Veteran regularly updated his mailing address with VA. The Board thus cannot attribute the Veteran not having listed the [REDACTED] as his current address to a failure to update his records with VA. Given the above, the Board finds that the appellant has not presented a satisfactory explanation for why, if he had in fact lived at the [REDACTED] address, the Veteran would not have had any of his VA correspondence, including his benefit checks, sent to the [REDACTED] for the last 18 years of his life. Furthermore, the Board notes that none of the Veteran’s medical records indicate that he and the appellant were living together, while multiple records indicate that they were not. For example, a March 1990 VA hospitalization summary notes that the Veteran reported he was divorced and lived with his grandmother, while a May 1995 hospitalization record notes that the Veteran reported that he lives alone. While the Veteran may have stayed with the appellant at times, such as when he needed for her to take care of him, it is not clearly demonstrated that he believed that they were living together. The Board notes that the details of the Veteran’s VA benefits also indicate that he did not consider himself to be in a common law marriage with the appellant. The record reflects that the Veteran promptly removed the appellant from his compensation benefits after their divorce. A September 1982 notification letter expressly informs the Veteran that “Your disability compensation award now provides for reduction of payment effective January 1, 1983, for the reason checked below.” The reason that was checked was “Final decree of divorce dated June [REDACTED], 1982 between you and [appellant].” The letter that was re-mailed to the Veteran at his [REDACTED] PO Box in May 1983 notes that “Included are additional benefits for your children. Any change in the number or status of your dependents must be reported promptly to the VA.” The Veteran was thus on notice that his VA benefits had decreased because of his divorce from the appellant and that he must notify VA of any change in number or status of dependents. The Veteran never reinstated the appellant onto his compensation award. Given that the Veteran had demonstrated financial need (as the appellant’s apportionment claim was initially denied because of the Veteran’s financial situation and there is no indication that his financial status improved in the years following this initial denial), the Board considers it unpersuasive that the Veteran would forgo receipt of benefits based on marital status if he did, in fact, consider himself to be married. No spouse was listed in the VA compensation benefits database through the time of the Veteran’s death. The Board considers it likely that, had the Veteran considered himself and the appellant married, the Veteran would have claimed the appellant as a dependent in order to receive the additional VA benefits. The Board must therefore conclude that the Veteran himself did not believe that he and the appellant had entered into a common law marriage following their divorce. With respect to finances, the record also contains documentation that the appellant was in receipt of child support from the Veteran for at least a decade following their divorce. This agreement, which was enforceable by Court Order, is in the terms of their Divorce Agreement, which took effect upon their divorce. The child support agreement was, in fact, the subject of Court action on multiple occasions for years following their formal divorce. The pursuit of child support payments through Court Order to enforce the terms of a Divorce Decree is not consistent with the actions of an individual who considered herself to be in a marital relationship with the person from whom she was seeking the child support. The Board has reviewed the lay statements from the appellant and her friends and family attesting to the long, complicated, and at times difficult relationship that she and the Veteran shared. The Board does not doubt that the appellant loved the Veteran deeply and that she remained devoted to the Veteran until his death. The Board finds, however, that, when evaluating the totality of the evidence of record, this evidence does not meet the high burden of demonstrating clear and convincing proof of common law marriage as required by Alabama law. Therefore, the appellant cannot be recognized at the Veteran’s surviving spouse for purposes of receiving VA death benefits. The claim must be denied. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Elizabeth Jalley, 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.