Veteranclaims’s Blog

June 2, 2020

Single Judge Application; Common Law Marriage; 38 C.F.R. § 3.205(a)(6) does not require the veteran and the appellant to have held themselves out as married in “all aspects.”; Rather, the regulation states that the appellant must provide evidence that the parties cohabitated for the requisite period, that they held themselves out as married, and that they were generally accepted as married in the communities in which they lived;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-6983
KATHRYN MARTINEZ REMINGTON, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENBERG, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

GREENBERG, Judge: Kathryn Martinez Remington appeals pro se an August 16, 2018, Board of Veterans’ Appeals decision that determined the appellant could not be recognized as the surviving spouse of Vietnam War veteran Andrew D. Martinez. Record (R.) at 4-12. The appellant presents many allegations of error regarding the Board’s decision that the Court will construe as a challenge to the Board’s statement of reasons or bases for its determination that she and the veteran did not hold themselves out to the community as married after their October 2009 divorce. Appellant’s Informal Brief at 1-29; see also Calma v. Brown, 9 Vet.App. 11, 15 (1996) (it is the Court’s practice to liberally construe the pleadings of pro se appellants). For the following reason, the Court will set aside the Board’s August 2018 decision and remand the matter for readjudication.
I.
The Veterans Administration was established in 1930 when Congress consolidated the Bureau of Pensions, the National Home for Disabled Volunteer Soldiers, and the U.S. Veterans’ Bureau into one agency. Act of July 3, 1930, ch. 863, 46 Stat. 1016. This Court was created with the enactment of the Veterans’ Judicial Review Act (VJRA) in 1988. See Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). Before the VJRA, for nearly 60 years VA rules, regulations, and
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decisions lived in “splendid isolation,” generally unconstrained by judicial review. See Brown v. Gardner, 513 U.S. 115, 122, (1994) (Souter, J.).
Yet, the creation of a special court solely for veterans is consistent with congressional intent as old as the Republic. Congress first sought judicial assistance in affording veterans relief when it adopted the Invalid Pensions Act of 1792, which provided “for the settlement of the claims of widows and orphans . . . and to regulate the claims to invalid pensions,” for those injured during the Revolutionary War. Act of Mar. 23, 1792, ch. 11, 1 U.S. Stat 243 (1792) (repealed in part and amended by Act of Feb. 28, 1793, ch. 17, 1 Stat. 324 (1793)). The act, though magnanimous, curtailed the power of the judiciary, by providing the Secretary of War the ability to withhold favorable determinations to claimants by circuit courts if he believed that the circuit court had erred in favor of the soldier based on “suspected imposition or mistake.” See id.
Chief Justice John Jay1 wrote a letter2 to President George Washington on behalf of the Circuit Court for the District of New York3 acknowledging that “the objects of this act are exceedingly benevolent, and do real honor to the humanity and justice of Congress.” See Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n., 1 L. Ed. 436 (1792). Jay also noted that “judges desire to manifest, on all proper occasions and in every proper manner their high respect for the national legislature.” Id.
1 John Jay served as the first Secretary of State of the United States on an interim basis. II DAVID G. SAVAGE, GUIDE TO THE U.S. SUPREME COURT 872 (4th ed. (2004)). Although a large contributor to early U.S. foreign policy, Jay turned down the opportunity to assume this position full time. Id. at 872, 916. Instead, he accepted a nomination from President Washington to become the first Chief Justice of the Supreme Court on the day the position was created by the Judiciary Act of 1789. Id. Jay resigned his position in 1795 to become the second Governor of New York. Id. He was nominated to become Chief Justice of the Supreme Court again in December 1800, but he declined the appointment.
2 The Supreme Court never decided Hayburn’s Case. See 2 U.S. (2 Dall.) 409, 409 (1792). The case was held over under advisement until the Court’s next session and Congress adopted the Invalid Pensions Act of 1793, which required the Secretary at War, in conjunction with the Attorney General, to “take such measures as may be necessary to obtain an adjudication of the Supreme Court of the United States.” Act of Feb. 28, 1793, ch. 17, 1 Stat. 324 (1793). Hayburn’s Case has often been cited as an example of judicial restraint, see, e.g., Tutun v. United States, 270 U.S. 568 (1926), but Supreme Court historian Maeva Marcus has argued persuasively to the contrary. See Maeva Marcus & Robert Teir, Hayburn’s Case: A Misinterpretation of Precedent, 1988 WIS. L. REV. 527. After all, Jay’s letter included by Dallas, the Court Reporter, in a note accompanying the decision to hold the matter under advisement, is nothing more than an advisory opinion that compelled Congress to change the law in order to make the judiciary the final voice on the review of a Revolutionary War veteran’s right to pension benefits. See Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n.
3 At this time, each Justice of the Supreme Court also served on circuit courts, a practice known as circuit riding. See RICHARD H. FALLON, JR., ET AL., HART AND WECHSLER’S the FEDERAL COURTS AND the FEDERAL SYSTEM (7th ed. 2015).
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This desire to effect congressional intent favorable to veterans has echoed throughout the Supreme Court’s decisions on matters that emanated from our Court. See Shinseki v. Sanders, 556 U.S. 396, 416, 129 S. Ct. 1696, 1709 (2009) (Souter, J., dissenting) (“Given Congress’s understandable decision to place a thumb on the scale in the veteran’s favor in the course of administrative and judicial review of VA decisions”); see also Henderson v. Shinseki, 562 U.S. 428, 440, 131 S. Ct. 1197, 1205 (2011) (declaring that congressional solicitude for veterans is plainly reflected in “the singular characteristics of the review scheme that Congress created for the adjudication of veterans’ benefits claims,” and emphasizing that the provision “was enacted as part of the VJRA [because] that legislation was decidedly favorable to the veteran”).
II.
Justice Alito4 observed in Henderson v. Shinseki that our Court’s scope of review is “similar to that of an Article III court reviewing agency action under the Administrative Procedure Act, 5 U.S.C. § 706.” 562 U.S. at 432 n.2 (2011); see 38 U.S.C. § 7261. “The Court may hear cases by judges sitting alone or in panels, as determined pursuant to procedures established by the Court.” 38 U.S.C. § 7254. The statutory command that a single judge5 may issue a binding decision is “unambiguous, unequivocal, and unlimited,” see Conroy v. Aniskoff, 507 U.S. 511, 514 (1993). The Court’s practice of treating panel decisions as “precedential” is unnecessary, particularly since the Court’s adoption of class action litigation. See Wolfe v. Wilkie, 32 Vet.App. 1 (2019). We cite decisions from our Court merely for their guidance and persuasive value.
III.
The veteran served in the U.S. Army from September 1969 through September 1971, as clerk, to include service in the Republic of Vietnam. R. at 505 (DD Form 214).
4 Justice Alito was born in Trenton, New Jersey. SUPREME COURT OF THE UNITED STATES, https://www.supremecourt.gov/about/biographies.aspx (last visited Mar. 4, 2020). He began his career as a law clerk, then became assistant U.S. attorney for the district of New Jersey before assuming multiple positions at the Department of Justice. Id. He then became a U.S. attorney for the district of New Jersey. Id. Before his nomination for the Supreme Court, he spent 16 years as a judge on the U.S. Court of Appeals for the Third Circuit. In 2005, President George W. Bush chose Alito to replace retiring Supreme Court Justice Sandra Day O’Connor.
5 From 1989 to 1993, West (the publisher of this Court’s decisions) published this Court’s single-judge decisions in tables in hard-bound volumes of West’s Veterans Appeals Reporter. Since 1993, West has published this Court’s single-judge decisions electronically only. I believe the Court should publish all its decisions in print form. See, e.g., Passaic Cty. Bar Ass’n v. Hughes, 401 U.S. 1003 (1971).
4
IV.
The appellant and the Veteran entered into a valid common law marriage in Colorado in 2003 where they resided at that time. R. at 8.
On August 7, 2009, the veteran and the appellant were ceremonially married in Tennessee while the veteran was undergoing VA treatment in the state. R. at 478.
On October 20, 2009, the veteran and the appellant were divorced in Missouri, where they resided until the veteran’s death. R. at 405-09.
The veteran died on April 5, 2011. R. at 510. A Colorado Daily Tribune obituary notes that the veteran “will be remembered as a husband” and is survived by Kathryn Remington. R. at 275.
In April 2012, the appellant filed an application for dependency and indemnity compensation (DIC) benefits. R. at 465-74.
The same month the appellant submitted a statement to her veteran service officer. R. at 171. She wrote that following her October 2009 divorce from the veteran they “agreed to return to our common law status, not knowing that the dissolution also voided our valid Colorado common law marriage, and that the State of Missouri does not recognize common law marriage. R. at 171.
In September 2012, the appellant’s brother submitted a VA Form 21-4171 Supporting Statement Regarding Marriage. R. at 300-01. He stated that the veteran and appellant were generally known as husband and wife, stated that he considered them to be husband and wife, and stated that they never denied their marriage. R. at 300. He wrote:
Kathy and Andrew were inseparable and dedicated to each other. They went to all [doctor] appointments together, you never saw one without the other. We consider Andrew a member of the family and were happy they married. I was part of the discussion of whether to end their formal marriage and neither one was happy about having to end the marriage, but Kathryn was so worried about Andrew losing his SSI money and felt the transplant might not be possible on her SSDI pension of $900 a month. We still considered them married and the marriage certificate was proudly displayed in their living room. In our eyes they were never divorced.
R. at 301.
The appellant’s son also submitted a VA Form 21-4171 Supporting Statement Regarding Marriage in September 2012. R. at 302-03. He also stated that the veteran and appellant were generally known as husband and wife, stated that he considered them to be husband and wife, and stated that they never denied their marriage. R. at 302. He added that the veteran and the appellant lived together from September 14, 2009, through April 5, 2011.” R. at 303. He then wrote: “By the
5
time Andrew died, I don’t believe Mom and Andrew had ever spent a day apart. They loved each other and were as married as two human beings can be, no matter what the law says.” R. at 303.
In October 2012, the appellant submitted a VA 21-4170 Statement of Marital Relationship asserting that she and the veteran lived together until his death and that “family, friends, doctors, [and] the community regarded us as husband and wife during this period and [their relationship] was widely publicized.” R. at 296. The appellant also submitted a statement in support of claim form and alleged that nothing about their relationship changed between September 14, 2009, and April 5, 2011. R. at 314. She indicated that she regretted getting the divorce and asserted that she believed her common law marriage from Colorado was still valid. R. at 314. She asked VA to recognize her marriage to the veteran as a “deemed valid marriage” under 38 U.S.C. § 103(a). R. at 314.
V.
In the August 2018 decision on appeal, the Board determined that entitlement to DIC benefits was not warranted because the veteran and the appellant did not hold themselves out to be married following their divorce. R. at 4. The Board first acknowledged the veteran and the appellant’s valid 2003 Colorado common-law marriage, their ceremonial marriage in Tennessee, and subsequent divorce in Missouri. R. at 8. After acknowledging these facts, the Board stated “the dispositive issue is whether the requirements for a marriage that can be deemed valid were met after that time.” R. at 8.
The Board then found that “a preponderance of the evidence is against a finding that the Veteran and the appellant held themselves out as married following the October 2009 divorce.” R. at 9. The Board listed evidence suggesting that the veteran and the appellant did hold themselves out as married following their October 2009 divorce, including the appellant’s lay testimony regarding her state of mind in the years following the divorce and her belief that the common law marriage from Colorado was still valid, the veteran’s obituaries, lay testimony from family and friends, life insurance forms, and VA treatment records where the veteran listed the appellant as his wife. R. at 9. The decision then states: “Nonetheless, the contemporaneous evidence shows that the Veteran and the appellant did not hold themselves out as married in all aspects during that time.” R. at 9 (emphasis added). Following this statement, the decision lists instances after the
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October 2009 divorce where the veteran and appellant did not indicate that they were married. R. at 9-11. The Board concluded:
[T]he evidence shows that they held themselves out as married in some environments, such as with family and during VA treatment – but they also demonstrated knowledge of the effect of their divorce, inasmuch as they intentionally held themselves out as former spouses in other situations during that time. In other words, it cannot be said that the Veteran and the appellant held themselves out as married following the October 2009 divorce. Because of this, even if the appellant was unaware of a legal impediment to common law marriage in Missouri, the threshold underlying requirement of common law marriage in [] 38 C.F.R. § 3.205(a)(6) has not been met.
R. at 11.
VI.
“When any veteran dies after December 31, 1956, from a service-connected or compensable disability, the Secretary shall pay dependency and indemnity compensation to such veteran’s surviving spouse, children, and parents.” 38 U.S.C. §1310.
“The term surviving spouse means . . . the spouse of a veteran at the time of the veteran’s death, and who lived with the veteran continuously from the date of the marriage to the date of the veteran’s death . . . and who has not remarried or (in cases not involving remarriage) has not since the death of the veteran, and after September 19, 1962, lived with another person and held himself or herself out to be the spouse of such other person.” 38 U.S.C. § 101(3); 38 C.F.R. 3.50(b) (2019).
A marriage is defined as a marriage 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 right to benefits accrued. 38 U.S.C. § 103(c); 38 C.F.R. § 3.1(j).
A common-law marriage can be considered a deemed valid marriage in jurisdictions where marriages other than by ceremony are recognized the affidavits or certified statement of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationships which existed between the parties to the alleged marriage including the periods of cohabitation, places of residence, whether the parties held themselves out as married, and
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whether they were generally accepted as such in the communities in which they lived.
38 C.F.R. § 3.205(a)(6).
When an attempted marriage of a claimant to a veteran was invalid by reason of a legal impediment, the marriage can be deemed valid if (a) the marriage occurred more than one year before the veteran died; (b) the claimant entered into the marriage without knowledge of the impediment; (c) the claimant cohabitated with the veteran continuously from the date of the marriage to the date of his or her death as outlined in 38 C.F.R. § 3.53; and (d) no claim has been filed by a legal surviving spouse. 38 U.S.C. §103(a); 38 C.F.R. § 3.52 (2019).
A requirement of a formal marriage ceremony by a jurisdiction that does not recognize common law marriage constitutes a legal impediment to that marriage for purposes of 38 U.S.C. § 103(A) and 38 C.F.R. § 3.52. Lamour v. Peake, 544 F.3d 1317, 1322 (Fed. Cir. 2008) (citing VAOPGCPREC 58-91). The determination as to a claimant’s knowledge of a legal impediment “is viewed in terms of what the appellant’s state of mind was at the time the invalid marriage was contracted.” Lamour, 544 F.3d at 1323. When a surviving spouse has submitted proof of marriage in accordance with 38 C.F.R. §3.205(a) and also meets the requirements of 38 C.F.R. §3.52 (deemed valid marriage), VA will accept a claimant’s signed statement that he or she had no knowledge of an impediment to the marriage, in the absence of information to the contrary, as fact.” 38 C.F.R. § 3.205(c) (2019).
“Each decision of the Board shall include . . . a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented in the record.” 38 U.S.C. § 7104(d)(1). This statement of reasons or bases serves not only to help a claimant understand what has been decided, but also to ensure that VA decisionmakers do not exercise “naked and arbitrary power” in deciding entitlement to disability benefits. See Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886) (Matthews, J.).
VII.
The Court concludes that the Board failed to adequately explain its determination that the requirements for a common-law marriage under 38 C.F.R. § 3.205(a)(6) had not been met. 38 U.S.C. § 7104(d)(1). The Board determined that the appellant’s common-law marriage could not be considered valid because the veteran and the appellant “did not hold themselves out as married
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in all aspects during that time.” R. at 9 (emphasis added). However, 38 C.F.R. § 3.205(a)(6) does not require the veteran and the appellant to have held themselves out as married in “all aspects.” See 38 C.F.R. § 3.205(a)(6) (2019). Rather, the regulation regarding whether a common-law marriage is valid states that the appellant must provide evidence that the parties cohabitated for the requisite period, that they held themselves out as married, and that they were generally accepted as married in the communities in which they lived. See 38 C.F.R. § 3.205(a)(6) (2019). It is unclear to the Court why the Board required the appellant to show that they held themselves out as married in “all aspects” when the regulation does not require such a high standard. Remand is warranted for the Board to provide an adequate statement of reasons or bases for its decision. 38 U.S.C. § 7104(d)(1).
Because the Court is remanding the matter, it will not address the appellant’s remaining arguments. See Dunn v. West, 11 Vet.App. 462, 467 (1998). On remand, the appellant may present, and the Board must consider, any additional evidence and arguments. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment. See 38 U.S.C. § 7112; see also Hayburn’s Case, 2 U.S. (2 Dall.) at 410, n. (“[M]any unfortunate and meritorious [veterans], whom Congress have justly thought proper objects of immediate relief, may suffer great distress, even by a short delay, and may be utterly ruined, by a long one.”).
VIII.
For the foregoing reason, the Board’s August 16, 2018, decision is SET ASIDE and the matter is REMANDED for readjudication.
DATED: May 29, 2020
Copies to:
Kathryn M. Remington
VA General Counsel (027)

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