Citation Nr: 21015349 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 13-21 297 DATE: March 17, 2021 ORDER Recognition of N.M. as the surviving spouse of the deceased Veteran for purposes of Dependency and Indemnity Compensation (DIC) and death pension benefits is denied. FINDINGS OF FACT 1. The Veteran and the appellant, N.M., were married in December 1946. 2. The Veteran’s marriage to N.M. was dissolved in January 1951; they did not remarry after their divorce. CONCLUSION OF LAW There is no legal basis to recognize the appellant, N.M., as a surviving spouse for purposes of receiving VA death benefits. 38 U.S.C. §§ 101 (3), 103, 1102; 38 C.F.R. §§ 3.1 (j), 3.5, 3.50, 3.54. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served from January 1951 to January 1953 and from February 1953 to March 1971, during the Korean Conflict and the Vietnam Era. The Veteran died in March 2012, and his death has been deemed service-connected, as reflected in a rating decision issued by Milwaukee, Wisconsin VA Pension Center. The appellant N.M. is seeking recognition as the Veteran’s surviving spouse for VA death benefit purposes. The Board notes that this is a simultaneously contested claim, between N.M., who brought this claim, and G.M., meaning a situation in which the allowance of one claim results in the disallowance of another claim involving the same benefit, or the allowance of one claim results in the payment of a lesser benefit to another claimant. 38 C.F.R. § 20.3 (p). In November 2017, the appellant N.M. testified at a hearing before a Veterans Law Judge who is now retired. In June 2019, a letter was sent to N.M. asking whether she would like a new hearing. No response from her was received. Therefore, the Board finds that she has declined to have another hearing. In December 2017, the Board remanded the appeal for further development. In July 2018, G.M. indicated that she desired a hearing at the Regional Office. However, in March 2019, she withdrew her request. Legal Analysis The appellant, N.M., is currently seeking entitlement to DIC and death pension benefits based on her claimed status as the Veteran’s surviving spouse at the time of his death. Subject to certain requirements, VA death benefits may be paid to a surviving spouse of a Veteran. 38 U.S.C. § 1102; 38 C.F.R. §§ 3.5, 3.54. An individual claiming to be the spouse of a veteran has the burden of coming forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). A “surviving spouse” is defined as a person of the opposite sex 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 and: (1) lived with the veteran continuously from the date of the marriage to the date of the veteran’s death except where there was separation due to the misconduct of the veteran or procured by the veteran without fault of the spouse; and (2) has not remarried or has not since the death of the veteran lived with another person of the opposite sex and held him or herself out openly to the public to be the spouse of such other person. 38 U.S.C. §§ 101 (3), 103; 38 C.F.R. § 3.50 (b). “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 C.F.R. § 3.1 (j). After careful review of the evidence of record, the Board finds that recognition of N.M. as the Veteran’s surviving spouse should be denied. Here, the appellant N.M. asserts that she should be recognized as the Veteran’s surviving spouse because she married him in December 1946 and that there was never a legally valid divorce under Tennessee law because the judge did not sign the final divorce decree in January 1951. However, the record reflects that G.M., who married the Veteran in April 1988, has been recognized by VA as the Veteran’s surviving spouse. Turning to the evidence, the record includes a certificate of marriage showing that N.M. married the Veteran in December 1946. The Veteran and N.M. had one son, H.M. Documents from the Crockett County Circuit Court show minutes from a divorce proceeding wherein the Veteran was granted an absolute divorce from N.M. in January 1951; however, they are unsigned by the judge. Also of record is a marriage certificate showing a union between the Veteran and G.M. in April 1988. A March 2012 letter from the Clerk and Master of the Court House in Crockett County, Tennessee, states that there are no court records of a divorce between the Veteran and N.M. The Veteran’s March 2012 death certificate lists N.M. as the surviving spouse and states that the Veteran’s son, H.M. was the informant for the certificate. A July 2013 administrative decision from the VA Pension and Maintenance Center found that G.M. was the Veteran’s surviving spouse for all benefits administered by the VA. Of record are lay statements from the Veteran’s son and an acquaintance, E.B., stating that the Veteran and N.M. were never separated or divorced. The Veteran’s obituary states that he was fist married to N.M., and had one son, then to D.F. (deceased), with whom he had two children, and then lastly to G.M. During the hearing, N.M. testified that she and the Veteran were married prior to his entrance into service and had a son. Approximately when their son was two years old, the Veteran entered service and she said the Veteran abandoned her and that she never heard from him again. She stated that she had no knowledge of the divorce proceedings until recently. In March 2019, VA obtained a legal opinion regarding the validity of the Veteran’s marriages and divorces. The attorney found that G.M. was the Veteran’s valid surviving spouse at the date of the Veteran’s death because he was legally divorced from all other prior spouses. He noted that the Veteran’s marriages took place in Tennessee, and that therefore Tennessee law governed those unions. He explained: Under Tennessee law, “[w]hen minutes of a court of record are signed by a judge they become the highest evidence of what was done in court and, so far as they are records of judicial proceedings, they import absolute verity, and are conclusive unless attacked for fraud.” See Bradley v. Bradley, C.A. No. 957, 1990 Tenn. App. LEXIS 652, at *7 (Ct. App. Sep. 14, 1990). Although signed minutes may become the highest evidence of a court’s action, this precedent does not mean that unsigned minutes are devoid of evidentiary value. See Weston v. State, No. E1999-02095-CCA-R3-CO, 2000 Tenn. Crim. App. LEXIS 914, at *7 (Crim. App. Nov. 27, 2000) (noting that “any failure on the part of a trial judge to sign court minutes does not render a judgment void.”); see also Cobb v. Brown, 42 Tenn. App. 595, 604, 305 S.W.2d 241, 245 (1956) (“We are compelled respectfully to disagree with and overrule the contention of the complainant that the decree... was invalid because the Chancellor failed to sign the minutes containing such decree.”) Absent any remarkable evidence attacking the authenticity of the submitted minutes, the undersigned finds that they constitute valid evidence of divorce, despite being unsigned; therefore, spouse N.M. cannot be the Veteran’s valid spouse at the date of his death because she was not lawfully married to him at that time. See 38 U.S.C. § 103(c) (2012); 38 C.F.R. §§ 3.1(j), 3.206; Weston v. State, No. E1999-02095-CCA-R3-CO, 2000 Tenn. Crim. App. LEXIS 914, at *7 (Crim. App. Nov. 27, 2000); Cobb v. Brown, 42 Tenn. App. 595, 604, 305 S.W.2d 241, 245 (1956). Regarding G.M., the attorney stated that there were no observable encumbrances to her 1988 marriage to the Veteran and the record does not indicate that she divorced the Veteran. Therefore, though N.M. has argued that her divorce was not valid because the court minutes were unsigned by the judge, the Board finds otherwise. In particular, the Board finds the March 2019 legal opinion, which is supported by caselaw and the appropriate statues, highly probative, and notes that such establishes that unsigned court minutes does not render a judgment void. Although the Veteran’s death certificate lists N.M. as his spouse, there is no evidence that she and the Veteran ever remarried after their 1951 divorce, and she testified that she never saw the Veteran once he enlisted in the service. Indeed, the evidence shows that the Veteran was married to G.M. at the time of his death. Furthermore, although a court clerk in March 2012 was unable to find any record of a divorce between N.M. and the Veteran, the record does in fact include the court minutes showing the divorce proceedings. Accordingly, the Board finds the evidence settled that N.M. and the Veteran divorced in 1951. Therefore, N.M. was not married to the Veteran at the time of his death in March 2012. Absent a finding that the appellant, N.M., was the Veteran’s spouse at the time of his death, the Board need not address the issue of cohabitation or remarriage as the threshold criteria for designation as a “surviving spouse” has not been met. Therefore, recognition as the Veteran’s surviving spouse is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, because the preponderance of the evidence   is against the appellant’s claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.Z., 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.