Citation Nr: 22001925 Decision Date: 01/13/22 Archive Date: 01/13/22 DOCKET NO. 19-06 360 DATE: January 13, 2022 ORDER Recognition as the Veteran's surviving spouse for the purpose of establishing entitlement to VA death benefits is denied. FINDINGS OF FACT 1. The Veteran died in January 2017, less than one year after a marriage ceremony with the appellant in California. 2. The Veteran and the appellant did not continuously cohabitate or hold themselves out as husband and wife in their residential state of Oregon, for more than one year prior to the Veteran's death. 3. The appellant had knowledge that a common-law marriage was not recognized in Oregon when she entered into cohabitation with the Veteran. CONCLUSION OF LAW The criteria for recognition of the appellant as the surviving spouse of the Veteran for the purpose of VA death benefits have not been met. 38 U.S.C. §§ 101, 103, 1102, 1304, 1541, 5107; 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.53, 3.54, 3.102, 3.205. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1968 to March 1970. He died in January 2017. The appellant is claiming to be his surviving spouse. This matter is on appeal from a February 2018 decision. In May 2021, the appellant testified at a Board hearing. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F. 3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Recognition as the Veteran's surviving spouse for the purpose of establishing entitlement to VA death benefits. The appellant seeks recognition as the Veteran's surviving spouse for purposes of entitlement to VA survivor benefits. Specifically, the appellant asserts that she and the Veteran lived together as husband and wife continuously in Oregon for 10 years prior to his death. See January 2019 VA Form 9. She also contends that their marriage in California was intended to encapsulate that entire time together. See May 2021 Board Hearing Transcript. When a veteran dies, his or her surviving spouse may be eligible to VA death benefits, to include DIC benefits, death compensation, and death pension. VA death benefits may be paid to a surviving spouse who was married to a veteran: (1) before the expiration of 15 years after the termination of the period of service in which the injury of disease causing death was incurred or aggravated, (2) one year or more prior to the veteran's death, or (3) for any period of time if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C. §§ 1102, 1304, 1541; 38 C.F.R. § 3.54. The term "surviving spouse" means a person who was married to the veteran at the time of the veteran's death, who lived with the veteran continuously from the date of marriage to the date of death (with limited exceptions), and has not remarried since the veteran's death. 38 U.S.C. § 101 (3); 38 C.F.R. §§ 3.50, 3.53. The claims file includes an uncertified copy of a marriage certificate indicating a marriage ceremony in California in February 2016, eleven months prior to the death of the Veteran. At the Board hearing, the appellant testified that while they resided in Oregon, she and the Veteran chose to be married in California because "He thought if we got married in California, since they saw common-law, that it would be ok." As it is undisputed that the date of the marriage on the submitted certificate was less than one year prior to the Veteran's death, and with no claim of a child born of the marriage, the appellant would not qualify for death benefits under 38 C.F.R. § 3.54. Nevertheless, a marriage with a legal impediment could still be deemed valid pursuant to 38 C.F.R. § 3.52, such as under appellant's contention of common-law marriage. Where an attempted marriage (such as common-law) is invalid by reason of legal impediment, VA regulations allow for certain attempted marriages to be nevertheless "deemed valid" if specific legal requirements are met. Basically, such 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 C.F.R. § 3.52. If the verification provisions of 38 C.F.R. § 3.205 (a) are satisfied as well as those of 38 C.F.R. § 3.52, the claimant's signed statement that she had no knowledge of an impediment to a marriage to the veteran will be accepted as proof of the fact, in the absence of information to the contrary. 38 C.F.R. § 3.205 (c). The Board initially notes that Oregon does not recognize common-law marriage. Or. Rev. Stat. § 106.010; see also Sato v. Hanlon (In re Hanlon), 557 B.R. 801, 805-806 (Bankr. D. Or. 2016). However, Oregon may recognize the marriage if a couple is from a state that acknowledges common-law marriages and they meet the requirements of common-law marriage of that state. See Garrett v. Chapman, 252 Ore. 361, 449 P.2d 856 (1969). While the Veteran and the appellant were married in California, they were not residents of that state, nor does California recognize common-law marriages. Cal. Fam. Code § 300. Although the lack of recognition of common-law marriage in Oregon is a legal impediment, this is still not a bar to benefits if the appellant entered into the purported common-law marriage without knowledge of the impediment, i.e., she was unaware that Oregon, as her jurisdiction of residence, did not recognize common-law marriage. See 38 C.F.R. § 3.52; VAOPGCPREC 58-91; see also Lamour v. Peake, 544 F.3d 1317 (Fed. Cir. 2008). However, in order for the claimed common-law marriage to be established for VA purposes, 38 C.F.R. § 3.205 (a)(6) requires two or more affidavits or certified statements from persons who know as the result of personal observation the reputed relationship which existed between the appellant and the Veteran, including the periods of cohabitation, places of residences, whether the parties held themselves out as married, and whether they were generally accepted as such in the communities in which they lived. Then, if the provisions of 38 C.F.R. § 3.52 and § 3.205 (a) are satisfied, the claimant's signed statement that she had no knowledge of an impediment to a marriage to the Veteran will be accepted as proof of the fact, in the absence of information to the contrary. The Board finds that the evidence of record does not support that the appellant is a surviving spouse of the Veteran for the purpose of VA death benefits based on a theory of common-law marriage. Although the appellant asserts that she and the Veteran lived as husband and wife for over 10 years, with a brief period of separation just prior to the February 2016 marriage, the claims file includes contradictory information and multiple inconsistent statements. Due to these inconsistencies described further below, the Board does not find credible the appellant's statements regarding the details of their marriage. In the appellant's March 2017 application for death benefits, she marked "no" to living continuously with the Veteran. In a May 2017 statement in support, she indicated she had incorrectly marked that box, and that they were together for 10 years living continuously until the time of the Veteran's death. She stated that towards the end of his life they made a trip to see his children and were apart for one week when she came home early and he stayed with his daughter. The appellant has also submitted multiple statements from others indicating that they knew the Veteran and the appellant. An April 2017 statement from the appellant's roommate stated that she had known the couple for 10 years, and "I know at no time during their marriage did they ever live apart." There are additional similar statements submitted from three friends of the appellant, and the appellant's two daughters. There is one supporting statement in the claims file that is purportedly from the Veteran's brother with his own last name misspelled, an Arizona address, undated, unwitnessed, and completed in a different handwriting than the signature. Of importance, while most of the statements submitted indicate that the appellant and the Veteran lived together for around 10 years, none of the statements indicate that the Veteran and the appellant held themselves out as husband and wife before the marriage. Further, the Veteran's statements of record prior to his death contradict that he and the appellant knew each other for 10 years, that they held themselves out as husband and wife, that they believed that they were in a common-law marriage, or even that they lived continuously together after the marriage. The Veteran's first Oregon address in the claims file appears in September 2006, at which time he entered the VA Southern Oregon Rehabilitation Center (VASORCC). Prior to this time he resided in Nevada, and in June 2007 returned to that state due to legal issues, with ten months spent in prison. The next reference to an address in Oregon occurs in December 2009, at which time the Veteran reports that he has been living there for the past year, visits his daughter's family three times per week, but with "no other social contacts and spends the remainder of his time in his apartment." See VA treatment records. The Veteran first discusses a girlfriend "for 2 years" in a February 2013 VA treatment record, but six days later reports that he was homeless after being "evicted" from her house. He again reports living with a girlfriend in January 2016, and in February 2016 reports that he recently married "his longtime girlfriend of six years." In a March 2016 medical CAPRI document, the appellant called VA stating her belief that the Veteran was dying, but was informed that there was no release on file to speak with her regarding his medical care. The last evidence in the record of the Veteran's residence prior to his death is found in a May 2016 medical CAPRI document. He reports that he was living with friends after both his wife and her roommate had just filed a stalking order against him (in contradiction to the timeline claimed by the appellant and her roommate). With a court date in June, he requested medication "triage," as he did not have access to his medications at home and planned to relocate, first driving to Sacramento to visit his children, and then to his brother in Arizona. He stated that he was not planning on returning and "will be remaining in AZ." Here, the appellant's claim has not satisfied the provisions of 38 C.F.R. § 3.52. The record shows that the attempted common-law marriage did not occur one year or more before the Veteran died. The Veteran did not hold himself out to be married to the appellant prior to the February 2016 marriage, only referring to the appellant as his girlfriend. The supporting statements from those claiming knowledge of the relationship also fail to demonstrate the couple presenting themselves as married prior to February 2016, in addition to miscalculating the length of the relationship. The appellant appears to have had some knowledge of the legal impediment that Oregon does not recognize common-law marriage. She testified at the May 2021 Board hearing that they chose to marry in California, despite not being residents, in order to correct the legal impediment in Oregon. The evidence of record also does not support that appellant cohabited with the Veteran continuously from the date of the attempted marriage until his death. The Veteran's statements in May 2016 show that he had been living with friends following a restraining order placed on him by the appellant, that he was not allowed to return home until June 2016, and his intent to travel to and remain in Arizona. While there are some exceptions to the requirement of continuous cohabitation under 38 C.F.R. § 3.53(a), which may be pertinent here as potential misconduct of the Veteran, as the appellant does not meet all of the other requirements to deem her marriage "valid" for benefit purposes, discussion of whether an exception is applicable is not necessary. While no other person has come forward purporting to be the Veteran's surviving spouse, the Board notes that the appellant has failed to supply any information about either the Veteran's or her marital history despite multiple requests. There is evidence in the claims file that the Veteran was previously married at least one time, with three children born of that marriage, and the appellant indicated four marriages on her March 2017 application for benefits, but without any names or dates. In sum, the Board finds that the evidence does not support the recognition of the appellant as the surviving spouse of the Veteran for the purpose of VA death benefits. 38 C.F.R. §§ 3.52, 3.53, 3.54, 3.205. As the evidence is persuasively against the claim, and there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable, and the appellant's claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, 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.