Veteranclaims’s Blog

June 8, 2020

Single Judge Application; common law marriage; 38 C.F.R. § 3.52; VA regulation recognizes that a common law marriage can be valid even in a jurisdiction that does not recognize such an arrangement;

Designated for electronic publication only
No. 19-3530
Before GREENBERG, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
GREENBERG, Judge: The appellant pro se appeals an April 1, 2019, Board of Veterans’
Appeals decision that denied her recognition as the surviving spouse of Thomas E. LaFreniere for
the purpose of dependency and indemnity compensation. The appellant argues that although the
decision on appeal was made in accordance with law, the Board failed to properly consider the
evidence. Appellant’s Informal Brief at 3. Specifically, she contends that she and the veteran were
in a common law marriage and had a “deemed valid marriage.” Appellant’s Informal Brief at 3.
For the following reason, the Court will set aside the April 2019 Board decision and remand the
matter for readjudication.
Justice Alito noted in Henderson v. Shinseki that our Court’s scope of review in this appeal
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. 428, 432 n.2 (2011); see 38 U.S.C. § 7261. The creation
of a special court solely for veterans, and other specified relations such as their widows, is
consistent with congressional intent as old as the Republic. See Hayburn’s Case, 2 U.S. (2 Dall.)
409, 410 n., 1 L. Ed. 436 (1792) (“[T]he objects of this act are exceedingly benevolent, and do real
honor to the humanity and justice of Congress.”). “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. Accordingly, the statutory command of Congress that a single judge may issue a binding
decision, pursuant to procedures established by the Court, is “unambiguous, unequivocal, and
unlimited.” Conroy v. Aniskoff, 507 U.S. 511, 514 (1993); see generally Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990).
From the beginning of the Republic statutory construction concerning congressional
promises to veterans has been of great concern. “By the act concerning invalids, passed in June,
1794, vol. 3. p. 112, the secretary at war is ordered to place on the pension list, all persons whose
names are contained in a report previously made by him to congress. If he should refuse to do so,
would the wounded veteran be without remedy? Is it to be contended that where the law in precise
terms, directs the performance of an act, in which an individual is interested, the law is incapable
of securing obedience to its mandate? Is it on account of the character of the person against whom
the complaint is made? Is it to be contended that the heads of departments are not amenable to the
laws of their country?” Marbury v. Madison, 5 U.S. 137, 164, 2 L. Ed. 60, 69 (1803).
The veteran served on active duty from June 1967 to May 1969 as a light weapons
infantryman, including service in Vietnam. R. at 265 (DD Form 214). He received the combat
infantry badge and various other awards for his service. See id. In March 2014, the appellant and
the veteran officially married. R. at 283. It appears undisputed that they dated for 30 years prior
to the marriage and lived together since at least April 2013. See R. at 12. The veteran died in
October 2014. R. at 262.
In the April 2019 decision on appeal, the Board found that the appellant did not qualify as
a surviving spouse. R. at 7-14. The Board determined that the veteran and the appellant officially
married in March 2014 and remained married until the veteran’s death in October 2014. R. at 7.
Because the veteran died less than a year after the veteran and the appellant entered into the official
marriage, the Board concluded that the nature of the marriage did not permit the appellant to be
considered a surviving spouse. R. at 11. The Board then found that “the actions prior to March
2014 did not constitute a valid marriage, to include common law marriage, between the appellant
and the [v]eteran.” R. at 7. The Board acknowledged the appellant’s assertion that “that [the
appellant and the veteran] maintained separate households prior to cohabitating in April 2013
because they are devout Catholics and agreed not live together prior to marriage.” R. at 10. The
Board then found:
Per lay evidence, the appellant and the Veteran dated for approximately 30 years
prior to the Veteran’s death in October 2014, that is approximately 1984, so could
not have had a valid common law marriage under the State of Michigan’s law. The
appellant does not contend that any other jurisdiction has recognized a valid
common law marriage between the appellant and the Veteran prior to the Veteran’s
death in October 2014. While the appellant contends she was in a committed
relationship with the Veteran for approximately 30 years, the appellant did not have
a valid marriage with the appellant until they legally married in March 2014 under
the laws of Michigan where they resided, so [she] was not married to the Veteran
for one year or more for VA purposes. Although the appellant contends she
continuously cohabited with the Veteran since April 2013, the “continuous
cohabitation” requirement is only relevant from the date of marriage. 38 C.F.R. §
R. at 12.
A common law marriage can be deemed valid marriage
[i]n jurisdictions where marriages other than by ceremony are recognized[, through
the following evidence:] [T]he affidavits or certified statements 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 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 1 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).
The Court concludes that the Board provided an inadequate statement of reasons or bases
for finding that the appellant and the veteran were not common law married as of April 2013. See
38 U.S.C. § 7104(d)(1 (“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.”). The Board appears to have glossed
over the appellant’s statements and the fact that VA regulation recognizes that a common law marriage can be valid even in a jurisdiction that does not recognize such an arrangement. 38 C.F.R. § 3.52. The Board acknowledged that the appellant reported that because of her and the veteran’s
religious faith, they would not live together unless they were married. See R. at 10. The fact that
they moved in together in April 2013 appears to be favorable evidence of a marriage beginning
once they began cohabitating. The Board failed to discuss whether the parties’ actions beginning
April 2013 constituted a common law marriage or whether they knew of any impediment tosuch
an arrangement. See 38 C.F.R. § 3.52. Instead, the Board centered its discussion on the laws of
Michigan and the parties’ official marriage in March 2014. Remand is required for the Board to
provide an adequate statement of reasons or bases for whether the appellant and the veteran entered
into a common law marriage in April 2013. 38 U.S.C. § 7104(d)(1).
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.”).
For the foregoing reason, the April 1, 2019, Board decision is SET ASIDE and the matter
is REMANDED for readjudication.
DATED: June 5, 2020
Copies to:
Cirie LaFreniere
VA General Counsel (027)

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