Decision Date: 08/22/95				Archive Date: 
08/30/95 
DOCKET NO.  93-21 648	)	DATE 
	) 
	) 
 
On appeal from the 
Department of Veterans Affairs Regional Office in Jackson, 
Mississippi 
 
 
THE ISSUE 
 
Entitlement to recognition of the appellant as the surviving 
spouse of the veteran for purposes of Department of Veterans 
Affairs (VA) death benefits.   
 
 
WITNESSES AT HEARING ON APPEAL 
 
Appellant and daughter 
 
 
ATTORNEY FOR THE BOARD 
 
Jeanne Schlegel, Associate Counsel 
INTRODUCTION 
 
The veteran had active military service from January 1943 to 
May 1946. 
 
This matter comes before the Board of Veterans' Appeals (the 
Board) from a September 1992 administrative decision by the 
VA Regional Office (RO) which determined that the marriage 
of the appellant and veteran could not be deemed valid for 
VA purposes. 
 
 
CONTENTIONS OF APPELLANT ON APPEAL 
 
The appellant contends that she is entitled to recognition 
as the surviving spouse of the veteran because she was 
married to the veteran from 1948 until his death in 1991.  
She asserts that at the time she married the veteran she 
believed that there was no impediment to her marriage to the 
veteran and that her marriage to the veteran was valid. 
 
 
DECISION OF THE BOARD 
 
The Board, in accordance with the provisions of 38 U.S.C.A. 
§ 7104 (West 1991), has reviewed and considered all of the 
evidence and material of record in the veteran's claims 
file.  Based on its review of the relevant evidence in this 
matter, and for the following reasons and bases, it is the 
decision of the Board that the evidence of record supports 
the appellant's claim for recognition as surviving spouse of 
the veteran for purposes of VA death benefits. 
 
 
FINDINGS OF FACT 
 
1.  The veteran and the appellant were married in 
Mississippi in September 1948.  The marriage was not 
terminated by divorce or otherwise prior to the veteran's 
death in Mississippi during February 1991. 
 
2.  The record reflects that the appellant believed that she 
had entered into had two previous marriages which had been 
terminated prior to her marriage to the veteran; no 
documentary evidence has been located to show that the 
appellant entered into a valid marriage prior to her 
marriage to the veteran or that any such marriage was 
terminated by death or divorce. 
 
3.  At the time of the 1948 marriage ceremony, the appellant 
was not aware of an impediment to marriage between herself 
and the veteran. 
 
4.  The veteran and the appellant lived together 
continuously as husband and wife from the date of marriage 
to the date of the veteran's death, a period of more than 42 
years. 
 
 
CONCLUSION OF LAW 
 
The requirements for recognition of the appellant as the 
veteran's surviving spouse for VA benefit purposes have been 
met.  38 U.S.C.A. §§ 101(3), 103(c), 5107 (West 1991); 38 
C.F.R. §§ 3.1(j), 3.52 (1994). 
 
 
REASONS AND BASES FOR FINDINGS AND CONCLUSION 
 
The appellant contends that she is the surviving spouse of 
the veteran because she was married to the veteran 
continuously from the date of their marriage in 1948 until 
his death in 1991.  For VA benefit purposes, the term 
"surviving spouse" means a person of the opposite sex who 
was the spouse of a veteran at the time of the veteran's 
death, and who lived with the veteran continuously from the 
date of marriage to the date of the veteran's death.  38 
U.S.C.A. § 101(3) (West 1991). 
 
The applicant can prove the existence of a marriage by the 
submission of various public records:  A copy of a public 
record of marriage; an affidavit of the clergyman or 
magistrate who officiated the ceremony; the certificate of 
marriage; the affidavits or certified statements of two or 
more eyewitnesses to the ceremony; and any other reliable 
secondary evidence of marriage.  In states that recognize a 
common-law marriage, an affidavit or certified statement 
from one or both of the parties detailing certain 
information can be accepted.  38 C.F.R. § 3.205(a).  In the 
absence of conflicting information, proof of a legally valid 
marriage which meets the requirements of 38 C.F.R. § 
3.205(a), along with a certified statement by the applicant 
concerning the dissolution of any prior marriage, may be 
accepted as establishing a valid marriage so long as the 
evidence is corroborated by the evidence of record.  38 
C.F.R. § 3.205(b).  Marriage may also be established by any 
other secondary evidence which reasonably supports a belief 
by the adjudicating activity that a valid marriage actually 
occurred.  38 C.F.R. § 3.205(a)(7).   
 
In determining whether or not a person is or was a spouse of 
a veteran, their marriage shall be proven as valid for the 
purpose of laws administered by the Secretary according to 
the law of the place where the parties resided at the time 
of their marriage or the law of the place where the parties 
resided when the right to benefits accrued.  38 U.S.C.A. § 
103(c) (West 1991); 38 C.F.R. § 3.1(j) (1994).  
 
Death benefits may be granted where a claimant, without 
knowledge of any legal impediment, entered into a marriage 
with the veteran which, but for the impediment, would have 
been valid, and she thereafter cohabited with him for one 
year or more immediately before his death or for any period 
of time if a child was born of the purported marriage or was 
born to them before such marriage.  Such claimant is not 
eligible, however, if a claim is filed by a legal surviving 
spouse of the veteran who is found entitled to such 
benefits.  38 U.S.C.A. § 103(a) (West 1991); 38 C.F.R. § 
3.52 (1994). 
 
 
Factual Background 
 
The veteran and the appellant were both born in the early 
1920's in a very small community in Mississippi.  He served 
in the Rhineland and Central Europe prior to his release 
from the Army in May 1946.  In December 1948, the veteran 
submitted into evidence certified copies of the application 
for marriage license with affidavits, as well as the 
Marriage License issued in August 1948, and the Certificate 
of Marriage which reflects that he and the appellant 
celebrated the rites of matrimony on September 11, 1948, 
before Reverend [redacted].  In correspondence dated in 
December 1948, the RO notified the veteran of an increase in 
his education or training award because proof of his 
marriage had been received. 
 
In 1960 a daughter was born to the appellant and the 
veteran.  According to a statement from this daughter dated 
in March 1993, the veteran and the appellant provided a good 
stable home for her and were known by all as husband and 
wife.  In 1984 the veteran became disabled and was no longer 
able to work.  The veteran reported in 1986 that his spouse, 
the appellant, was the sole source of income for their 
family; that she worked as a cook and received Social 
Security benefits.  The appellant and the veteran continued 
to live together as husband and wife until the veteran's 
death in 1991. 
 
In an application for pension received in July 1985, the 
veteran reported that he had been married once, and that his 
wife, the appellant, had been married three times.  In March 
and June 1986 the RO requested the veteran to provide 
certified copies of the public records of termination of the 
appellant's previous marriages. 
 
In July 1986, the veteran submitted a statement that he 
could not obtain death certificates or divorce decrees of 
the appellant's previous marriages.  He provided income 
information reflecting that his spouse, the appellant, had 
income of more than $7,500 per year.  In September 1986, the 
RO requested more information regarding the appellant's 
previous marriages.  In July 1987, the veteran submitted a 
Statement of Income and Net Worth on which he remarked that 
there was no record of divorce between his "wife" and her 
first husband, and therefore he commented that they were not 
legally married.  He added that in the near future she would 
takes steps to secure an uncontested divorce, at which time 
he would marry her.  He also noted that he was aware of the 
fact that if his marriage to the appellant were to be 
recognized by VA that he would no longer be entitled to VA 
assistance because of her income.  Thereafter, the veteran 
submitted income reports dated August 1988 and November 
1990, in which he reported that he was not married. 
 
In a request for information from the Social Security 
Administration (SSA) dated in March 1988, the SSA listed the 
appellant as the wife of the veteran. 
 
The veteran died in February 1991.  The death certificate 
reflects that the veteran was married to the appellant at 
the time of his death.  The appellant filed her claim for 
survivor's benefits in November 1991, along with a certified 
copy of the marriage license.  She certified that she was 
not aware of any impediment to her marriage with the veteran 
and that she and the veteran live together continuously from 
their marriage in 1948 until the veteran's death in 1991. 
 
In a statement dated in February 1992, the appellant stated 
that her first husband, [redacted], could not be 
located after an extensive search, but that "someone" 
indicated that he had died in 1985.  Further, he led her to 
believe that he had gotten a divorce as he remarried prior 
to the appellant's second marriage to [redacted].  She 
mentioned that [redacted] was also believed to be dead.  
However, no dates even approximately, were provided with 
respect to the appellant's first two marriages. 
 
The RO rendered an administrative decision concerning the 
issue of whether the appellant's marriage to the veteran 
could be deemed valid for VA purposes in September 1992.  
The RO, citing the provisions of VA Adjudication Procedure 
Manual M21-1 (M21-1), Part IV, paragraph 12.10(c), held that 
the marriage could not be deemed valid because the 
impediment was the appellant's inability to prove the 
dissolution of her own previous marriages.  Further, in this 
administrative decision the RO indicated that the denial was 
based, in part, on the fact that the appellant became aware 
that her marriage to the veteran was not legal. 
 
In March 1993, the appellant submitted several lay 
statements in support of her claim.  These included the 
statements from the daughter of the appellant and the 
veteran who reported that she had lived with them from her 
birth in 1960 until she joined the Army in 1978.  Other 
statements were received from a social worker, from the 
veteran's pastor who had known the appellant and veteran for 
35 years, and from another veteran who had known the 
deceased veteran since the time that they had served 
together during World War II. 
 
At a hearing before the undersigned Member of the Board, 
sitting in Jackson, Mississippi, in September 1993, the 
appellant and her daughter testified in support of the 
appellant's claim.  The appellant testified that she thought 
she entered into her first marriage at age 16.  According to 
the daughter, this was possibly in 1939.  The daughter 
stated that the family was from a very, very small community 
in Mississippi, and that no records regarding the first or 
second marriages could be found, and it was believed that 
both of the previous husbands were dead, as they could not 
be located.  The appellant's daughter testified that she 
believed that neither of the first two husbands stayed with 
the appellant for even a year.  The appellant stated that 
when she married the veteran she felt free to marry him with 
no problems.  She explained that the two previous husbands 
walked off and left her and were never heard from again.  
The daughter than gave a background of life in Mississippi 
in the 1930's and 1940's.  The daughter testified that the 
community included a lot of poor uneducated people who were 
not fully aware of the laws, and that it was accepted 
practice that if a spouse left, one was free to remarry.  
The appellant testified that she had a fourth grade 
education level.  She explained that she and the veteran did 
not realize there might be a problem with their marriage 
until he got sick and the VA needed various documentation, 
but that at the time she and the veteran married she was not 
aware of any impediment at all.   
 
 
Analysis 
 
The Court of Veterans Appeals has acknowledged the Board's 
authority to decide a claim in the alternative.  Holbrook v. 
Brown, No. 94-241 (U.S. Vet. App. July 18, 1995) (per 
curiam), and Luallen v. Brown, No. 94-398 (U.S. Vet. App. 
July 28, 1995).  Accordingly, the Board in this case 
advances several alternate bases for concluding that the 
marriage of the veteran and the appellant was valid or can 
be deemed valid for VA purposes. 
 
Prior Marriages 
 
Initially, the Board notes that while the record contain 
official documents for the marriage of the veteran and the 
appellant, there is no such evidence with respect to the 
appellant's alleged previous marriages.  The appellant's 
daughter testified that although she searched for marriage 
records pertaining to the appellant, she could find no 
record that the appellant had entered into a marriage prior 
to her marriage to the veteran.  The appellant's 
relationships with [redacted] and [redacted] were 
of brief duration and no evidence of a common law marriage 
is of record.  If VA requires official documentation to 
establish the termination of a marriage, it follows that 
official documentation should be required to establish the 
marriage in the first place.  As there is no official 
documentation of the appellant's "marriages" prior to her 
marriage to the veteran, the Board concludes that there was 
no legal impediment to her marriage to the veteran and that 
this marriage was valid.  Another agency of the Government, 
that is, the Social Security Administration, has apparently 
accepted the validity of the marriage of the appellant and 
the veteran.  Accordingly, the appellant should be 
recognized as the surviving spouse of the veteran for VA 
purposes. 
 
Mississippi Law 
 
Assuming that the appellant was married prior to her 
marriage to the veteran, the Board nevertheless still 
concludes that her marriage to the veteran was valid.  As 
provided under 38 U.S.C.A. § 103(c) and 38 C.F.R. § 3.1(j), 
in determining whether or not the appellant was the spouse 
of the veteran, their marriage shall be proven as valid 
according to the law of Mississippi, the place where they 
resided at the time of their marriage and the place where 
they continued to reside until the veteran's death.  Under 
Mississippi law, when a person has entered into several 
successive marriages, there is a presumption that the last 
marriage is valid.  This presumption, in the absence of 
evidence to the contrary, will prevail and it will be 
presumed (emphasis added) that the previous marriages were 
dissolved by death or divorce.  Dale Polk Construction Co. 
and U.S.F. & G. v. White, 287 So.2d 278 (1973); citing, 
Anderson-Tully Co. v. Wilson, 221 Miss. 656, 74 So.2d 735 
(1954).  These presumptions are based upon public policy.  
The burden of adducing evidence to the contrary rests on the 
party who attacks the validity of the last marriage.  The 
burden of proof is a difficult one:  "It has been declared 
that, an existing marriage being shown, the presumption of 
its validity is so strong that proof of a former subsisting 
marriage, in order to be sufficient to overcome this 
presumption, must be so cogent and conclusive as to fairly 
preclude any other result."  Anderson-Tully, 221 Miss. at 
662, 74 So.2d at 737. 
 
It is noted that M21-1, Part IV, paragraph 12.03(f)(5) 
provides that state court evidence rules regarding 
presumptions of validity of the most recent marriage cannot 
be used to establish a current marriage for VA purposes if 
there is evidence of a valid prior undissolved marriage.  No 
legal authority for this provision is cited and the Board is 
not aware of any such authority.  This manual provision may 
be binding on the RO, but it is not binding on the Board.  
For a discussion of the validity of the provisions of this 
manual see the March 1992 opinion of VA Office of the 
General Counsel, O.G.C. Prec. 07-92.  Of course, in this 
particular case, there is no documentary evidence of a valid 
prior undissolved marriage. 
 
Thus, even if the Board were to conclude that the appellant 
had entered into valid marriages prior to her marriage to 
the veteran, under the law of the place where the appellant 
and the veteran resided at the time of their marriage and 
the place where they continued to reside until the veteran's 
death, there is a presumption that the appellant's previous 
marriages were dissolved by death or divorce and that her 
marriage to the veteran was valid.  Accordingly, the Board 
again comes to the conclusion that the appellant should be 
recognized as the surviving spouse of the veteran. 
 
A "Deemed Valid" Marriage 
 
Finally, assuming that there was a legal impediment to the 
marriage of the appellant to the veteran in 1948, the Board 
nevertheless concludes that the appellant was unaware of any 
such impediment at the time of her marriage to the veteran 
and that the marriage can be "deemed valid" for VA purposes.  
38 C.F.R. § 3.52(b).  The proper legal test is whether the 
appellant was aware of an impediment to the marriage at the 
time the marriage was entered into. 
 
The Board notes that provisions of M21-1, if valid, would 
require the RO to arrive at a different conclusion.  The 
provisions of M21-1, Part IV, paragraph 12.10(c), provide 
that a marriage cannot be deemed valid if the impediment is 
the claimant's inability to prove the dissolution of his or 
her own prior marriage.  The manual cites no legal authority 
for this provision and the Board is not aware of any such 
authority.  As noted above, the Board is not bound by this 
manual. 
 
Upon consideration of the full circumstances of this case, 
the Board finds that, even if it is assumed that the 
appellant had prior marriages which had not been terminated, 
the marriage of the veteran and the appellant may be deemed 
valid for VA purposes.  Due significance must be accorded to 
the time, place, and circumstances of the appellant's 
actions.  Based in large part on the appellant's testimony 
at a hearing before the undersigned Board member, it is 
clear that at the time of her marriage to the veteran she, 
in good faith, believed that there was no impediment to the 
marriage.  Consideration has been given to the fact that she 
has a 4th grade education and was born and raised in a very, 
very small community which was largely poor, uneducated, and 
unskilled in the law.  When viewed through the eyes of one 
with a 4th grade education coming from such a background, 
her testimony under oath that she was unaware of any problem 
with her marriage to the veteran is believable.  The Board 
finds her testimony credible in view of the specific facts 
and circumstances of the case.  In addition, the appellant 
cohabited with the veteran from the date of marriage to the 
date of his death, nor has a claim for survivors benefits 
been filed by a legal surviving spouse.  Therefore, assuming 
that the appellant had prior marriages which had not been 
terminated, a "deemed valid" marriage between the veteran 
and appellant is established. 
 
 
ORDER 
 
Entitlement to recognition as surviving spouse of the 
veteran for purposes of VA death benefits is established. 
 
 
		 
	GARY L. GICK 
	Member, Board of Veterans' Appeals 
 
The Board of Veterans' Appeals Administrative Procedures 
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 
___ (1994), permits a proceeding instituted before the Board 
to be assigned to an individual member of the Board for a 
determination.  This proceeding has been assigned to an 
individual member of the Board. 
 
NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
1991), a decision of the Board of Veterans' Appeals granting 
less than the complete benefit, or benefits, sought on 
appeal is appealable to the United States Court of Veterans 
Appeals within 120 days from the date of mailing of notice 
of the decision, provided that a Notice of Disagreement 
concerning an issue which was before the Board was filed 
with the agency of original jurisdiction on or after 
November 18, 1988.  Veterans' Judicial Review Act, Pub. L. 
No. 100-687, § 402 (1988).  The date which appears on the 
face of this decision constitutes the date of mailing and 
the copy of this decision which you have received is your 
notice of the action taken on your appeal by the Board of 
Veterans' Appeals. 
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