Citation Nr: 23019352 Decision Date: 03/29/23 Archive Date: 03/29/23 DOCKET NO. 13-44 055A DATE: March 29, 2023 REMANDED Entitlement to recognition of as the surviving spouse of the Veteran for purposes of establishing eligibility for Department of Veterans Affairs (VA) death benefits is remanded. REASONS FOR REMAND This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in St. Paul, Minnesota, which determined that the appellant did not have a valid common law marriage for VA purposes. The Veteran had service from November 11, 1966 through November 8, 1967 (Honorable); November 9, 1967 through July 23, 1968 (Honorable); and July 24, 1968 through June 29, 1971 (Other Than Honorable). A January 2002 administrative decision by the Houston, Texas, VA RO determined that the Veteran had "Dishonorable Service" from November 11, 1966 through June 29, 1971. See Administrative Decision (January 2002). However, in April 2010, the Houston RO notified the Veteran that his periods of service between November 1966 and July 1968 were honorable for VA purposes, but the other period (July 24, 1968 through June 29, 1971) was considered dishonorable for VA purposes. See Correspondence April 2010. The Veteran died on April [REDACTED], 2010, and an original VA death benefits claim was received in May 2010. An August 2010 rating decision granted service connection for diabetes mellitus type 2 associated with herbicide exposure and service connection for the cause of the Veteran's death (chronic obstructive pulmonary disease with diabetes significantly contributing to death). In this case, the appellant (JCH) and GH are two individuals claiming to be the deceased Veteran's lawful surviving spouse for purposes of obtaining his VA death benefits; thus, this appeal involves a simultaneously contested claim. See 38 U.S.C. § 7105A; 38 C.F.R. § 20.3(p). In these circumstances, before the merits of the claim for VA death benefits can be addressed, the Board must first determine whether either claimant is the Veteran's lawful surviving spouse for VA purposes. In April 2017, the appellant (JCH) testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In October 2017, the Board remanded the case for further development. While the Board regrets the additional delay, for the reasons discussed below, another remand is necessary to conduct additional development prior to appellate review. VA will notify the appellant if further action is required on her part. I. Preliminary Matters As a preliminary matter, the Board notes that VA death benefits may be paid to the surviving spouse of a Veteran in certain circumstances. 38 U.S.C. §§ 1310, 1541(a). Except as provided in 38 C.F.R. § 3.52, the term "surviving spouse" 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 and: (1) 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 (2) except as provided in 38 C.F.R. § 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. 38 C.F.R. § 3.50(b). VA death benefits may be paid to a surviving spouse who was married to the Veteran: (1) one year or more prior to the veteran's death, or (2) 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. One claiming to be the spouse of a veteran has the burden to come forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The appellant has the burden to establish her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). Here, the appellant contends that, under Texas law where she resides, she is the common law wife of the Veteran and should be recognized as the Veteran's surviving spouse for purposes of entitlement to death benefits. 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). Common law marriage is recognized in Texas. See Tex. Family Code Ann. § 2.401(a). Section 2.401 provides for proof of informal (common law) marriage in the State of Texas and states: (a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that: (1) a declaration of their marriage has been signed as provided by this subchapter; or (2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and they represented to others that they were married. (b) If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married. (c) A person under 18 years of age may not: (1) be a party to an informal marriage; or (2) execute a declaration of informal marriage under Section 2.402. (d) A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable. Tex. Family Code Ann. § 2.401. II. Contested Claims As discussed in the Board's October 2017 remand, for a contested claim, as here, there are certain procedural safeguards. See 38 U.S.C. § 7105A; 38 C.F.R. §§ 19.100, 19.101, 19.102, 20.500-20.504, 20.713; see also VBA Live Manual M21-1, Part III, Subpart vi, Chapter 6. Specifically, the Agency of Original Jurisdiction (AOJ) must notify all interested parties of all actions taken by the AOJ and of the right and time limit for initiation of an appeal, and of the right to a hearing and representative. 38 C.F.R. § 19.100. Upon the filing of a notice of disagreement (NOD) in a simultaneously contested claim, all interested parties and their representatives will be furnished a copy of the statement of the case (SOC). 38 C.F.R. § 19.101. When a substantive appeal (VA Form 9) is filed in a simultaneously contested claim, the content of the substantive appeal will be furnished to the other contesting parties to the extent that it contains information which could directly affect the payment or potential payment of the benefit which is the subject of the contested claim. 38 C.F.R. § 19.102. If a party to a contested claim requests a hearing, the other contesting claimant and representative, if any, will be notified and afforded an opportunity to be present. 38 C.F.R. § 20.713(a). Specific rules are provided for conduct of the hearing itself, to afford both parties an opportunity to be heard. Here, the record shows that the contested claims procedures have not been fully implemented. The Board, in its October 2017 remand directives, instructed that all contesting parties be provided the content of the substantive appeals consistent with 38 C.F.R. § 19.102. While copies of the SOCs were provided to all parties, the record shows no indication that the content of the claimants' substantive appeals were furnished to all parties and their representatives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). Next, the appellant (GH) provided testimony at a Board video conference hearing on August 29, 2022; JCH was provided notice of this hearing but did not appear. Copies of the August 29, 2022 hearing transcript should be provided to all contesting claimants, including JCH and the Veteran's children, MH and BH. Finally, the Veteran's daughter (MH), who filed a timely NOD with the AOJ's denial of VA death benefits, was issued an SOC dated in October 2013 that addressed entitlement to accrued benefits (returned by the U.S. Postal Service as undeliverable but re-sent in April 2016); however, she has not been issued an SOC on the matter of her status as claimant as she contends. In correspondence received by VA on March 11, 2011, MH stated that she and her brother, BH, were the Veteran's sole heirs for purposes of receiving VA death benefits. Because MH submitted a timely NOD with the May 20, 2011 AOJ decision, and an SOC has not yet been issued with regard to the issue of her status as a claimant, a remand is required for the AOJ to issue an SOC. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Send MH and her representative a statement of the case that addresses the issue of her status as a claimant for purposes of receiving VA death benefits. Copies of the statement of the case should be provided to all other interested parties and, if applicable, their representatives. 2. The AOJ should provide the content of the substantive appeals to all contesting parties consistent with 38 C.F.R. § 19.102, including the substantive appeals received by VA on December 24, 2013 (from JCH) and July 29, 2016 (from GH), as well as any other substantive appeals received. 3. The AOJ should provide the contested claimants and their representatives, if applicable, a copy of the August 29, 2022 hearing transcript associated with this appeal and an opportunity to present rebuttal evidence and/or argument. 4. After the AOJ ensures that all contested claims procedures have been fully implemented, and ensuring any other necessary development has been completed, the AOJ should readjudicate the claim with consideration of any newly obtained evidence obtained by VA or submitted by a contesting claimant. If the benefit sought is not granted, the appellant and her representative, if any, should be furnished a supplemental statement of the case and given the requisite opportunity to respond before the case is returned to the Board. Copies of the supplemental statement of the case should be provided to all interested parties and, if applicable, their representatives. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Sherrard, 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.