Veteranclaims’s Blog

February 14, 2020

Single Judge Application; common law marriage; 38 C.F.R. § 3.1(j) or § 3.52; Section 3.205(a)(6) describes the evidence sufficient to prove the existence of a common-law marriage;

Filed under: Uncategorized — veteranclaims @ 8:28 pm

Excerpt from decision below:

“To qualify as a surviving spouse, the person’s marriage to the veteran must meet the requirements of either 38 C.F.R. § 3.1(j) or § 3.52. 38 C.F.R. § 3.50(b). Section 3.1(j) provides that a “marriage” is “a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued.” Both parties agree that West Virginia law controls in this case and that West Virginia does not recognize the validity of common-law marriages. See W. VA.CODE § 48-2-101 (2010) (“Every marriage in this state must be solemnized under a marriage license issued by a clerk of the county commission. . . . If a ceremony of marriage is performed without a license, the attempted marriage is void, and the parties do not attain the legal status of husband and wife.”). Consequently, Mr. Rayle’s and Ms. Jobes’s relationship is not a valid marriage in West Virginia and,therefore, is not a “marriage” under § 3.1.Nevertheless, Ms. Jobes can still qualify as a surviving spouse for dependency and indemnity compensation purposes if her relationship with Mr. Rayle is deemed to be a valid marriage under§ 3.52. This section provides:Where an attempted marriage of a claimant to the veteran was invalid by reason ofa legal impediment, the marriage will nevertheless be deemed valid if:(a) The marriage occurred 1 year or more before the veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage (see § 3.54(d)), 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 marriage to the date of his or her death as outlined in § 3.53, and(d) No claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the veteran’s death.338 C.F.R. § 3.52 (emphasis added). The requirement of a formal marriage ceremony by a jurisdiction that does not recognize common-law marriage, such as West Virginia, constitutes a”legal impediment” under this section. See Lamour v. Peake, 544 F.3d 1317, 1322 (Fed. Cir. 2008)(citing VA Gen. Coun. Prec. 58-91 (June 17, 1991)). “The determination of a claimant’s knowledge of a legal impediment is viewed in terms of ‘what the appellant’s state of mind was at the time that the invalid marriage was contracted.'” Id. at 1323(quoting Dedicatoria v. Brown, 8 Vet.App. 441,444 (1995)). In addition:Where a surviving spouse has submitted proof of marriage in accordance with[38 C.F.R. § 3.205(a) ] and also meets the requirements of § 3.52, the claimant’s1signed statement that he or she had no knowledge of an impediment to the marriage to the veteran will be accepted, in the absence of information to the contrary, as proofof that fact.38 C.F.R. § 3.205(c). The determination of whether a claimant was legally married to a veteran for the purposes of dependency and indemnity compensation is a question of fact subject to the “clearly erroneous”standard of review. See 38 U.S.C. § 7261(a)(4); Dedicatoria, 8 Vet.App. at 443.”

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“To comply with this requirement, the Board must analyze the credibility Section 3.205(a)(6) describes the evidence sufficient to prove the existence of a common-law marriage:1In jurisdictions where marriages other than by ceremony are recognized the 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. T his evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage 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.38 C.F.R. § 3.205(a)(6). T his section applies where, as here, the claimant is seeking a “marriage deemed valid” under§ 3.52 based on the legal impediment that a jurisdiction does not recognize common-law marriage. See Lam our,544 F.3d at 1323.4and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.1996) (table).

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Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO.09-4119

JACQULYN J.JOBES,APPELLANT,V.ERIC K.SHINSEKI,SECRETARY OF VETERANS AFFAIRS,APPELLEE.

Before HAGEL, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.

HAGEL, Judge: Jacqulyn J. Jobes appeals through counsel a September 17, 2009, Board ofVeterans’ Appeals (Board) decision that denied her request to be recognized as a surviving spousefor dependency and indemnity compensation purposes. Record (R.) at 4-12. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the September 2009 Board decision. Because the Board’s determination that Ms. Jobes did not qualify as a surviving spouse for dependency and indemnity compensation purposes was clearly erroneous, not supported by legal authority, and not supported by an adequate statement of reasons or bases, the Court will vacate the September 17, 2009, Board decision and remand the matter for readjudication consistent with this decision.

I. FACTS

Lawrence N. Rayle served on active duty in the U.S. Army from January 1968 to August1970. It is undisputed that, in 1981, Mr. Rayle and Ms. Jobes agreed to “stay together forever” and began living together in West Virginia. R. at 211. Although the couple lived together continuously until Mr. Rayle’s death in November 2005, they never formalized their relationship with a solemnized marriage ceremony because Ms. Jobes had two previous marriages that “weren’t very good” and she wanted to “just [leave] things well enough alone.” R. at 33.In June 2007, Ms. Jobes filed a claim for dependency and indemnity compensation. In support of her claim, Ms. Jobes submitted lay statements from friends and family members indicating that the couple had lived together as husband and wife and held themselves out as such in the community. In September 2007, a VA regional office issued an administrative decisionfinding that Mr. Rayle’s and Ms. Jobes’s relationship was not a valid common-law marriage. Ms.Jobes filed a timely Notice of Disagreement with this decision and subsequently perfected her appeal. In March 2009, Ms. Jobes testified at a Board hearing that she “never really gave that much thought” to the issue of common-law marriage. R. at 34.In September 2009, the Board issued the decision currently on appeal, which denied her request to be recognized as Mr. Rayle’s surviving spouse for dependency and indemnity compensation purposes. Specifically, the Board explained:While there are statements from various parties that [Ms. Jobes] and [Mr. Rayle] held themselves out as husband and wife, there is far more evidence that they did not consider themselves to be married. In this regard, [Ms. Jobes] did not list herself as[Mr. Rayle’s] wife on [his] death certificate, on her initial application for VAbenefits, or in applications for insurance and loans.R. at 10. Based on the foregoing, the Board concluded: “The undisputed evidence is that [Ms. Jobes]and [Mr. Rayle] had a close[,] loving relationship, resided together for 24 years, raised [Ms. Jobes]’schildren together, and co-mingled their finances. They did not, however, enter into a deemed validcommon[-]law marriage.” R. at 11.

II. ANALYSIS

A. Applicable Law

The surviving spouse of a veteran who died from a service-connected disease is entitled to receive dependency and indemnity compensation. 38 U.S.C. § 1310(a). A “surviving spouse” is:[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 . . . and who has not remarried or (in cases not involving remarriage) has not since the death of the veteran, and after September219, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C. § 101(3); see also 38 C.F.R. § 3.50(b) (2010). To qualify as a surviving spouse, the person’s marriage to the veteran must meet the requirements of either 38 C.F.R. § 3.1(j) or § 3.52. 38 C.F.R. § 3.50(b). Section 3.1(j) provides that a “marriage” is “a marriage valid under the law of the place wherethe parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued.” Both parties agree that West Virginia law controls in this case and that West Virginia does not recognize the validity of common-law marriages. See W. VA.CODE § 48-2-101 (2010) (“Every marriage in this state must be solemnized under a marriage license issued by a clerk of the county commission. . . . If a ceremony of marriage is performed without a license, the attempted marriage is void, and the parties do not attain the legal status of husband and wife.”). Consequently, Mr. Rayle’s and Ms. Jobes’s relationship is not a valid marriage in West Virginia and,therefore, is not a “marriage” under § 3.1.Nevertheless, Ms. Jobes can still qualify as a surviving spouse for dependency and indemnity compensation purposes if her relationship with Mr. Rayle is deemed to be a valid marriage under§ 3.52. This section provides:Where an attempted marriage of a claimant to the veteran was invalid by reason ofa legal impediment, the marriage will nevertheless be deemed valid if:(a) The marriage occurred 1 year or more before the veteran died or existed for any period of time if a child was born of the purported marriage or wasborn to them before such marriage (see § 3.54(d)), 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 marriage to the date of his or her death as outlined in § 3.53, and(d) No claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the veteran’s death.338 C.F.R. § 3.52 (emphasis added). The requirement of a formal marriage ceremony by a jurisdiction that does not recognize common-law marriage, such as West Virginia, constitutes a”legal impediment” under this section. See Lamour v. Peake, 544 F.3d 1317, 1322 (Fed. Cir. 2008)(citing VA Gen. Coun. Prec. 58-91 (June 17, 1991)). “The determination of a claimant’s knowledge of a legal impediment is viewed in terms of ‘what the appellant’s state of mind was at the time that the invalid marriage was contracted.'” Id. at 1323(quoting Dedicatoria v. Brown, 8 Vet.App. 441,444 (1995)). In addition:Where a surviving spouse has submitted proof of marriage in accordance with[38 C.F.R. § 3.205(a) ] and also meets the requirements of § 3.52, the claimant’s1signed statement that he or she had no knowledge of an impediment to the marriage to the veteran will be accepted, in the absence of information to the contrary, as proof of that fact.38 C.F.R. § 3.205(c). The determination of whether a claimant was legally married to a veteran for the purposes of dependency and indemnity compensation is a question of fact subject to the “clearly erroneous”standard of review. See 38 U.S.C. § 7261(a)(4); Dedicatoria, 8 Vet.App. at 443. In rendering its decision, the Board is required to provide a written statement of the reasons or bases for its “findings and conclusions[] on all material issues of fact and law presented on the record.” 38 U.S.C.§ 7104(d)(1). The statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See Gilbert v. Derwinski,1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility Section 3.205(a)(6) describes the evidence sufficient to prove the existence of a common-law marriage:1In jurisdictions where marriages other than by ceremony are recognized the 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. T his evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage 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.38 C.F.R. § 3.205(a)(6). T his section applies where, as here, the claimant is seeking a “marriage deemed valid” under§ 3.52 based on the legal impediment that a jurisdiction does not recognize common-law marriage. See Lam our,544 F.3d at 1323.4and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.1996) (table). The Board may commit error requiring remand when it fails to provide an adequatestatement of its reasons or bases. See Gilbert, 1 Vet.App. at 57.B. Merits AdjudicationMs. Jobes argues that the Board’s determination that she did not qualify as a surviving spousefor dependency and indemnity compensation purposes was clearly erroneous and not supported byan adequate statement of reasons or bases. The Court agrees.1. Weighing the EvidenceHere, the Board cataloged the evidence for and against Ms. Jobes’s claim, including:numerous lay statements from friends and family members indicating that the couple had livedtogether as husband and wife and held themselves out as such in the community (R. at 66, 68, 219-22, 254); a health care surrogate form listing Ms. Jobes’s as Mr. Rayle’s “common [-]law wife” (R.at 194); a statement submitted to VA that the couple’s marital relationship was to “stay togetherforever” (R. at 211); Mr. Rayle’s obituary describing Ms. Jobes as his “companion of the past 24years” (R. at 70); an automobile insurance form listing Mr. Rayle as Ms. Jobes’s “nonrelative friend”(R. at 140); a hospital record identifying Ms. Jobes as Mr. Rayle’s “friend” (R. at 202); Mr. Rayle’sdeath certificate stating that he was “never married” (R. at 256); and an application for VA burialbenefits listing Ms. Jobes as Mr. Rayle’s “companion” (R. at 287). The Board then determined,without discussion, that “[w]hile there are statements from various parties that [the couple] heldthemselves out as husband and wife, there is far more evidence that they did not consider themselvesto be married.” R. at 10. 2Although Ms. Jobes argues that this determination is clearly erroneous because “[s]implearithmetic shows that there is actually more evidence that the couple considered themselves married. . . than not,” Appellant’s Br. at 7, the Board, in making factual findings, must do more than engageT he Court notes that, contrary to the Secretary’s assertion, there is no requirement that a couple hold themselves2out to the community as husband and wife in order for a marriage to be deemed valid. See Secretary’s B rief (B r.) at 8;see also 38 C.F.R. § 3.52. Instead, it appears that the B oard made this finding in the context of determining whether M s.Jobes had submitted sufficient proof of marriage under 38 C.F.R. §§ 3.205(a) and (c). See R. at 10.5in such purely quantitative analysis. See Gilbert, 1 Vet.App. at 57(“Equal weight is not accordedto each piece of material contained in a record; every item of evidence does not have the sameprobative value.”). The Board is instead required to weigh the evidence of record and is free toconclude that certain evidence is more probative than other, conflicting evidence. See Washingtonv. Nicholson, 19 Vet.App. 362, 369 (2006) (holding that it is the Board’s responsibility to determinethe appropriate weight to be given to evidence); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991)(“The [Board] has the duty to assess the credibility and weight to be given to the evidence.”). However, the Board must also explain its reasons for rejecting any material evidence favorable tothe claimant. See Caluza, 7 Vet.App. at 506. Here, the Board did not provide any reasons for rejecting the numerous favorable laystatements of record nor did the Board explain why the other evidence of record was more probativethan the lay statements. Without the benefit of the Board’s reasons or bases for its decision, theCourt cannot resolve the apparent inconsistency in the Board’s determination that Ms. Jobes and Mr.Rayle did not consider themselves to be married and the Board’s statement that “[t]he undisputedevidence is that [they] had a close[,] loving relationship, resided together for 24 years, raised [Ms.Jobes]’s children together, and co-mingled their finances.” R. at 11. In addition, the Secretary essentially concedes that the Board’s statement of reasons or basesis inadequate, describing the Board’s reasoning as “implicit in its decision and determination.” Secretary’s Br. at 13. However, the Board is required to explicitly account for the evidence that itfinds to be persuasive or unpersuasive and provide the reasons for its rejection of any materialevidence favorable to the claimant. See Caluza, 7 Vet.App. at 506. Accordingly, the Courtconcludes that the Board’s failure to explain how it weighed the conflicting evidence of recordfrustrates judicial review and renders its statement of reasons or bases for its decision inadequate. See Gilbert, 1 Vet.App. at 57. Therefore, vacatur and remand is warranted. Id.2. Intent at the Time the Marriage Was ContractedMoreover, although the Board correctly stated that, pursuant to § 3.52, “if [Ms. Jobes] enteredinto a common-law marriage with [Mr. Rayle] without knowledge that West Virginia did notrecognize those marriages, the marriage could be ‘deemed valid,'” the Board applied the wrong legalstandard in determining that the couple’s relationship was not a valid marriage. R. at 10. As6explained above, “[t]he determination of a claimant’s knowledge of a legal impediment is viewedin terms of ‘what the appellant’s state of mind was at the time that the invalid marriage wascontracted.'” See Lamour, 544 F.3d at 1322 (quoting Dedicatoria, 8 Vet.App. at 444) (emphasisadded)). However, the Board determined that Ms. Jobes had knowledge of the legal impediment thatWest Virginia did not recognize common-law marriages based on evidence that significantlypostdated the beginning of the couple’s cohabitation in 1981–i.e., the time that the invalid marriagewas contracted–and did not refer to Ms. Jobes’s state of knowledge at that time. Specifically, the Board cited recent documents that referred to Ms. Jobes as Mr. Rayle’scompanion or friend instead of his wife, but did not explain how these documents reflected herknowledge of the legal impediment in 1981. Similarly, the Board considered Ms. Jobes’sunchallenged testimony from the March 2009 Board hearing that “she never thought about whetherWest Virginia recognized common-law marriages, but when discussing benefits with a VAemployee, she told the employee that West Virginia did not recognize such marriages,” andconcluded that this testimony “indicates an awareness that West Virginia did not recognize common-law marriages.” R. at 11. However, this testimony, by its very nature, does not refer to Ms. Jobes’s knowledge of thelegal impediment in 1981, but rather to the knowledge she gained through communications with VAfollowing Mr. Rayle’s death in November 2005. Consequently, the Court concludes that the Board’sdetermination that Ms. Jobes had knowledge of the legal impediment that West Virginia did notrecognize common-law marriages, which prohibited VA from finding that her relationship with Mr.Rayle was a valid marriage under § 3.52, is clearly erroneous because the Board applied the wronglegal standard in making this determination. SeeDedicatoria, 8 Vet.App. at 443. Accordingly,vacatur and remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding thatremand is the appropriate remedy where the Board has incorrectly applied the law).On remand, Ms. Jobes is free to submit additional evidence and argument in accordance withKutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), including affidavits orcertified statements as described in 38 C.F.R. § 3.205(a)(6) and a signed statement that she had noknowledge of a legal impediment to marriage in accordance with § 3.205(c). See Kay v. Principi,16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[a] remand is meant to entail a7critical examination of the justification for the decision.” Fletcher v. Derwinski, 1 Vet.App. 394, 397(1991). In addition, the Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112(expedited treatment of remanded claims).III. CONCLUSIONUpon consideration of the foregoing, the September 17, 2009, Board decision is VACATEDand the matter REMANDED for further development.DATED: May 12, 2011Copies to:Daniel J. Krasnegor, Esq.VA General Counsel (027)

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