Citation Nr: 21041503 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-49 167 DATE: July 9, 2021 ORDER Dependency and indemnity compensation (DIC) benefits are denied. FINDING OF FACT The existence of a common law marriage has not been established by clear and convincing evidence and the appellant was therefore married to the Veteran for less than one year prior to his death. CONCLUSION OF LAW The criteria for DIC benefits not met. 38 U.S.C. § 1310, 5107; 38 C.F.R. §§ 3.1(j), 3.54(b), 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1967 to August 1969. He died in May 2013. The appellant in this case is the Veteran's widow. This appeal is before the Board of Veterans' Appeals (Board) from a June 2013 decision of the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin, in which it was determined that DIC benefits could not be paid to the appellant because she was married to the Veteran for less than one year prior to his death. The appellant disagreed with that decision and subsequently perfected an appeal to the Board. The Board notes that in her October 2016 substantive appeal, the appellant requested a Board hearing in Washington, DC. Such a hearing was scheduled for September 26, 2019, but the appellant failed to report. As good cause was not shown for why the appellant failed to report for her hearing and she has not otherwise requested that the hearing be rescheduled, the Board will proceed as though the hearing request has been withdrawn. 38 C.F.R. § 20.704(d). Entitlement to DIC benefits The appellant claims entitlement to DIC benefits. DIC benefits may be awarded to a veteran's spouse, children, or parents for death resulting from a service-connected or compensable disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In order for service connection for the cause of a veteran's death to be granted, it must be shown that a service-connected disorder caused his or her death, or substantially or materially contributed to it. A service-connected disorder is one that was incurred in or aggravated by active service. Here, an April 2014 rating decision awarded service connection for the cause of the Veteran's death. The appellant, however, was denied DIC benefits as she was not determined to be an eligible surviving spouse. In this regard, the law provides that DIC benefits may be paid to a surviving spouse who was married to the Veteran (1) before the expiration of 15 years after separation from service, (2) one year or more, or (3) for any period of time if a child was born to the spouse and Veteran. 38 C.F.R. § 3.54(b). In the instant case, the appellant has submitted a marriage certificate dated November 2012. This marriage took place less than a year prior to Veteran's death on May [REDACTED], 2013, and more than 15 years after separation from service. The couple had no children together. As such, the appellant is not an eligible surviving spouse based on the November 2012 marriage certificate. 38 C.F.R. § 3.54(b). The appellant further claims that she had been in a common law marriage with the Veteran under the laws of Rhode Island. Such a marriage, if valid, would qualify the appellant as a surviving spouse for the purposes of 38 C.F.R. § 3.54(b). See 38 C.F.R. § 3.1(j). Rhode Island courts have determined that a common law marriage is established when there is clear and convincing evidence that (1) the parties had the capacity to marry, (2) the parties seriously intended to enter into a mutual husband-wife relationship, and (3) the parties' conduct was of such a character so as to lead to a belief in the community that they were married. Luis v. Gaugler, 185 A.3d 497, 503 (R.I. 2018). VA mental health treatment records reflect that in March 1987, the Veteran reported that he had been separated from his wife for six years. He stated that he then lived with his father or his "girlfriend" since he had been unable to afford rent since August 1986. In May 1987, he reported that he sometimes lived with his "girlfriend" but usually at his father's house. In August 1987, the Veteran reported that he had broken up with his "girlfriend" of two years and was then-currently living with his father. In April 1989, he stated that he was in the process of getting a divorce from his second wife because she wanted to remarry. He stated that he then currently lived with a "girlfriend" whom he had known for four years. In his March 1989 claim for disability compensation, the Veteran reported that he had been married to his second wife (not the appellant) since August 1975, but that they had been separated for 8 years and she was living at a separate address. In a March 1989 application for Vocational Rehabilitation and Employment (VR&E) (now Veteran Readiness and Employment) services, the Veteran listed three children as dependents. He did not check the box to indicate that he had a spouse, and he repeated the same action in his November 1990 application for VR&E services. The Veteran underwent a VA mental health examination in May 1989. He reported that he had been married twice and that his current wife was in the process of obtaining a divorce because she wanted to remarry. He stated that then lived with a girlfriend and spent time at her house, as well as the house of his late father. In a July 1989 statement, the Veteran reported that his second wife left him after five years of marriage. He stated that he got a furnished room and had lived alone for eight years. A November 1989 direct deposit sign-up form indicates that the Veteran's benefits were paid to an account in his name only. The Veteran then submitted an application to add dependents to his VA compensation benefits in July 1991. He listed his three children, but did not list a spouse. He was not receiving benefits for a dependent spouse at the time of his death. VA treatment records reflect that in October 2003 and June 2004 the Veteran, while speaking to his psychiatrist, referred to the appellant as his wife and common-law wife, respectively. In May 2005, he stated that he had lived with his girlfriend for the past 20 years. In November 2005, he reported that had been married twice before and was then-currently living with his girlfriend of 20 years. In March 2009 he reported that he lived with his girlfriend of 25 years and got along well with her. In August 2011 he reported to his primary care physician that he lived with his girlfriend. In October 2011, the appellant, via telephone, identified herself as the Veteran's wife. Emergency room notes from November 2011 identify the appellant as the Veteran's girlfriend, but later in the month, his primary care physician met with the Veteran "and his wife." In her May 2013 application for DIC, the appellant stated that the Veteran had divorced his prior wife in October 1989 and had married the appellant on November 5. No year was listed for their marriage, but their marriage certificate states November 5, 2012, so it seems reasonable that she intended to write that date. The appellant further stated that she divorced her first husband in Rhode Island but did not provide a date. In her April 2014 notice of disagreement, the appellant stated that she was with the Veteran from 1983 to 1991 in Rhode Island, which created a common law marriage under the laws of that state. She included eight statements and affidavits from people stating that she and the Veteran presented themselves as a married couple for thirty years. Four of these statements appear to be from people related to the appellant. Additionally, an email from a friend in Rhode Island stated that the appellant and the Veteran had been a couple since 1983, but did not make any statement about whether they presented themselves as married. In a November 2015 statement, the appellant stated that she was divorced from her first husband, but that she did not know the date of their divorce. VA attempted to assist in obtaining records of this divorce, but was unable to locate such records. As an initial matter, under VA laws and regulations, if a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Nevertheless, the definition of a common law marriage is not governed by VA laws. Rather, VA defers to the laws of the state in which the marriage is alleged to have arisen. Here, Rhode Island law places the burden on a party that seeks to establish a common law marriage to provide clear and convincing evidence. Luis, 185 A.3d at 503. The Board will therefore employ that standard of review. The Board finds that the appellant has failed to establish the existence of a common law marriage by clear and convincing evidence. "[T]he party seeking to prove the existence of a common-law marriage must at the very least present evidence that he or she had the capacity to enter into the marriage." Petrarca v. Castrovillari, 448 A.2d 1286, 1289 (R.I. 1982). Here, the appellant has not been able to provide sufficient details of her divorce to show that she was legally capable of entering into a common law marriage while residing in Rhode Island. Furthermore, the fact that the Veteran was still married to his second wife when he began his relationship with the appellant creates a presumption against the creation of a common law marriage. See id. at 1290 (citing Ibello v. Sweet, 133 A. 801, 801-02 (R.I. 1926)). As to the remaining factors, in claims file documents the Veteran referred to the appellant as his girlfriend more often that as his wife. He also never claimed benefits for her as a dependent. While the appellant has produced statements from friends and family that considered them married, there are no documents showing any mutually held property or assets that indicate living as a couple. Indeed, if they believed themselves to be in a legal common law marriage, the November 2012 marriage was an unnecessary redundancy. For these reasons, the Board finds that the appellant has failed to establish the existence of a common law marriage by clear and convincing evidence. As such, the appellant was married to the Veteran for less than one year prior to his death, and she therefore is ineligible to receive DIC benefits as a surviving spouse. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Gallagher, 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.