Citation Nr: 21026301 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 14-37 808 DATE: April 30, 2021 ORDER Entitlement to recognition of the Appellant as the surviving spouse of the Veteran for the purpose of eligibility for entitlement to service connection for the cause of the Veteran’s death is denied. FINDING OF FACT 1. The record evidence shows that the Veteran and the Appellant were legally married on October [REDACTED], 2012. 2. The record evidence shows that the Veteran died on February [REDACTED], 2013. 3. There is no evidence or allegation that any children were born to the Appellant and the Veteran at any time during their relationship or that the Appellant is expecting to give birth to the Veteran’s child. 4. Common law marriage is not recognized under Michigan state law. 5. The preponderance of the evidence of record is against finding that the Appellant and the Veteran believed they had a valid common law marriage in Michigan prior to October [REDACTED], 2012. 6. The preponderance of the evidence of record is against finding that the Appellant was unaware that Michigan did not recognize common law marriage prior to October [REDACTED], 2012. 7. The preponderance of the evidence of record is against finding that the Veteran and Appellant continuously cohabitated from the date of the alleged common law marriage to the date of the Veteran’s death. CONCLUSION OF LAW The criteria for entitlement to recognition of the Appellant as the surviving spouse of the Veteran for the purpose of eligibility for entitlement to service connection for the cause of the Veteran’s death 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, 3.54 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the U.S. Army from January 1968 to October 1970. He died in February 2013. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In May 2018, the Board issued a decision denying the Appellant’s claim of entitlement to recognition as the Veteran’s surviving spouse for the purpose of eligibility for entitlement to service connection for the cause of the Veteran’s death because the Appellant did not meet the legal criteria to qualify as a “surviving spouse.” The Appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). The Court vacated and remanded the Board’s May 2018 decision in February 2020. The Board subsequently this matter to the Agency of Original Jurisdiction (AOJ) in August and November 2020. The Board notes that there was substantial compliance with its November 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to recognition of the Appellant as the surviving spouse of the Veteran for the purpose of eligibility for entitlement to service connection for the cause of the Veteran’s death The Board finds that the preponderance of the evidence is against recognizing the Appellant as the surviving spouse of the Veteran for the purpose of eligibility for entitlement to service connection for the cause of the Veteran’s death. The Board notes initially that, to establish status as a surviving spouse of a Veteran for purposes of entitlement to eligibility for VA benefits, the Appellant must have been validly married to the Veteran under the laws of the appropriate jurisdiction and must meet the criteria of a surviving spouse. See 38 U.S.C. §§ 1311, 1541; 38 C.F.R. §§ 3.1 (j), 3.50. For VA benefit purposes, a “spouse” is a person who is a husband or wife. 38 U.S.C. § 101 (31). 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 rights to benefits accrued.” 38 C.F.R. § 3.1 (j). The term “surviving spouse” generally means a person whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1 (j) and who was the spouse of the Veteran at the time of the Veteran’s death. 38 C.F.R. § 3.50 (b). The Appellant must have been married to the Veteran either (1) one year or more prior to the Veteran’s death; (2) for any period of time if a child was born of the marriage or was born to them before the marriage; or (3) in the case of this Veteran, who served during the Vietnam era, prior to May 8, 1985. 38 C.F.R. § 3.54 (a). The record evidence does not support the Appellant’s assertions that she should be recognized as the Veteran’s surviving spouse of the Veteran for the purpose of eligibility for entitlement to service connection for the cause of the Veteran’s death. She submitted a marriage certificate showing that she married the Veteran on October [REDACTED], 2012. Although this certificate indicates that the marriage was legal, it also shows that the marriage did not occur before or during the Veteran’s service, 1 or more years prior to his death, or prior to May 8, 1985. Thus, the Appellant does not meet the strict length or timing eligibility requirements for a validly recognized marriage set forth in 38 C.F.R. § 3.54 (a). Id. She also does not allege – and the evidence does not show – that she and the Veteran had children at any time before or during the marriage or is expecting to give birth to a child of the Veteran. See 38 C.F.R. §§ 3.54 (a)(2), (d). Consequently, there is no basis for setting aside the timing and length eligibility requirements for a validly recognized marriage. The Board has considered the Appellant’s assertion she and the Veteran lived together for over 20 years. Ordinarily, this would raise the possibility of a common law marriage that might satisfy the basic eligibility requirements even without an “official” marriage with the requisite timing or length. Id. A common law marriage is valid only if recognized by governing state law. Here, the Appellant and the Veteran lived together in Michigan at the time of his death. And the laws of Michigan do not recognize common law marriage. Thus, the fact that the Appellant asserted that she and the Veteran lived together for over 20 years does not entitle her to recognition as the “surviving spouse” of the Veteran for VA purposes. The Appellant also argues that she was unaware that the Michigan did not recognize common law marriages prior to October [REDACTED], 2012, and, therefore, she believed that she had a valid common law marriage in Michigan beginning in 1991. The Board notes in this regard that, pursuant to 38 C.F.R. § 3.52, where an attempted marriage of a claimant to the Veteran was invalid by reason of 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 § 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 § 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 C.F.R. § 3.52. As noted above, the Appellant’s legal marriage to the Veteran did not occur for 1 year or more before the Veteran’s death. Nor was there any child born to the Veteran and the Appellant at any time during their relationship. She contends that she and the Veteran informally exchanged wedding vows and rings in 1991 and, between 1991 and his death, they believed they had a valid common law marriage in Michigan. After review of the record, the Board finds that the Veteran nor the Appellant believed they had a valid common law marriage prior to October [REDACTED], 2012. A review of the file reflects the Veteran divorced his former wife, N.H. on May [REDACTED], 1991; and the Appellant divorced her former husband, L.H., on July [REDACTED], 1991. Thereafter, the Veteran and the Appellant were free to marry each other. In November 2012, the Veteran submitted a Declaration of Status of Dependents where he claimed he was married to the Appellant as of October [REDACTED], 2012. In a February 2013 obituary for the Veteran, it states that his survivors included his loving companion and wife, whom he married October [REDACTED], 2012. In June 2013, the Appellant filed a claim as a surviving spouse and, in the marital section, she stated that she had married the Veteran on October [REDACTED], 2012. In June 2013 correspondence, the Appellant noted that the Veteran’s sister was his beneficiary on his checking account. These documents and statements seem to contradict her assertion that she and the Veteran believed that they had a valid common law marriage before they were legally married on October [REDACTED], 2012. A review of the Veteran’s medical records reflect that, between 1991 (the date of the alleged common law marriage) and October 26, 2012, he repeatedly referred to the Appellant as his “girlfriend” or “friend” with only one notation in November 1994 where the Veteran stated that he had a common law wife. In June 2000, he submitted a Status of Dependents Questionnaire form where he checked the box for “no” in answer to the question of “are you married?” This directly contradicts the Appellant’s assertion that hospital records prior to October 2012 show that the Veteran consistently referred to the Appellant as his spouse. It also persuasively suggests that the Veteran did not believe he had a valid common law marriage with the Appellant before they were legally married on October [REDACTED], 2012. There also is conflicting evidence regarding when the alleged common law marriage between the Appellant and the Veteran occurred. She has stated that the marriage occurred in 1991. A review of a May 2020 affidavit from her daughter, which was submitted in support of the Appellant’s claim, states that the Veteran and the Appellant lived as common-law husband and wife since September 1990. The Appellant asserted that the only reason that she and the Veteran got legally married was so that she could legally use his last name. This contradicts earlier statements she made that she was already using his last name prior to the legal marriage. She also did not provide a reason for obtaining a legal marriage. Lastly, while the Appellant asserts that she believed that Michigan recognized common law marriage, she also asserted unequivocally in statements submitted to the VA and to her congressional representatives that she knew that Michigan did not recognize common law marriage. She specifically noted in correspondence with her congressional representatives that common law marriage in Michigan has not been legal since 1957. These statements directly contradict her assertion that, for the entire time prior to her legal marriage to the Veteran in October 2012, she was unaware that Michigan did not recognize common law marriage. It persuasively suggests instead that she knew Michigan did not recognize common law marriage. Given the contradicting evidence noted above, the Board finds that the Appellant’s contentions that her and/or the Veteran believed they had a valid common law marriage prior to October [REDACTED], 2012, and that she was unaware that Michigan did not acknowledge common law marriages, are not credible. The Board next notes that VA made several attempts to obtain all of the Social Security Administration (SSA) records for the Veteran and the Appellant as these records could provide relevant information regarding their relationship prior to their legal marriage on October [REDACTED], 2012. The Board notes further that the Appellant reported receiving spousal benefits from SSA after the Veteran’s death. However, after several negative responses for medical records received from SSA, SSA informed VA that in order to obtain all records the Appellant must complete a Form 3288. In December 2020, VA sent a letter to the Appellant requesting completion of the form; however, to date, there is no record of a response. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that “[t]he duty to assist is not always a one-way street. If a Veteran [or an Appellant] wishes help, he [or she] cannot passively wait for it in those circumstances where he [or she] may or should have information that is essential in obtaining the putative evidence.” See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Given the Appellant’s failure to respond or provide the necessary information in order for VA to attempt to obtain SSA records, the Board concludes that these records cannot be obtained and further efforts to obtain them would be futile. Having reviewed the record evidence, and especially in light of the Appellant’s refusal to provide documentation from SSA in support of her claim, the Board is not persuaded that she and the Veteran held themselves out as common law spouses in Michigan prior to October [REDACTED], 2012. The Board similarly is not persuaded that the Appellant was unaware that Michigan did not recognize common law marriage prior to her entering a legal marriage with the Veteran on October [REDACTED], 2012. Even assuming arguendo that the Appellant and Veteran were in a common law marriage from 1991 until his death in 2013 which was considered valid in Michigan, the Board finds that the threshold of continuous cohabitation under 38 C.F.R. § 3.53 would not be met. Under 38 C.F.R. § 3.53, the requirement for a surviving spouse that there must 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. 38 C.F.R. § 3.53(a). The Appellant asserted that she lived continuously with the Veteran for over 22 years from the date of the alleged common law marriage in 1991 until his death in 2013. These statements are contradicted directly by additional statements from the Appellant where she asserted the following: “been together for 22 years and lived together for over 7 years” and “[Veteran] had been living with me since Oct. 2011. We have been together for 22.5 years. He lived with me for about 8 years, then it was on and off until Oct 2011.” Also, the Veteran’s medical records reveal that he lived with his sister in 1991 and lived alone from January 1996 to at least April 2000 after breaking up with the Appellant some time prior to January 1996. Given the foregoing, the Board finds that the fact that the Veteran and the Appellant did not live together for 4 years between approximately January 1996 and April 2000 does not constitutes a temporary separation that ordinarily occurs. The Board also finds that, given their 4-year separation, they did not cohabit continuously between the date of their alleged common law marriage in 1991 and his death in 2013. This finding is supported by the Veteran’s statements prior to his death that this separation from the Appellant between 1996 and 2000 was due to him breaking up with her some time prior to January 1996. These statements also suggest that the Veteran did not foresee a future reconciliation with the Appellant at the time they stopped living together in 1996. The Appellant otherwise has not identified or submitted evidence demonstrating her entitlement to recognition as the surviving spouse of the Veteran for the purpose of eligibility for entitlement to service connection for the cause of the Veteran’s death. The Board acknowledges her current hardship and the weight of the Veteran’s loss. Nevertheless, the record evidence does not support granting her claim. In summary, the Board finds that the claim of entitlement to recognition of the Appellant as the surviving spouse of the Veteran for the purpose of eligibility for entitlement to service connection for the Veteran’s cause of death is denied. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, 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.