Citation Nr: 18160463
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 17-05 334
DATE:	December 26, 2018
ORDER
Entitlement to dependency and indemnity compensation (DIC) as the surviving spouse of the Veteran is granted.
FINDINGS OF FACT
1. The Veteran and the appellant were married by ceremony in April 1975 and they divorced in October 1981.  During this period, they had three children together.  
2. The Veteran remarried after this divorce to another individual.
3. The Veteran and the appellant began cohabiting in August 1991 after the Veteran’s separation from his second spouse.  In August 1992, the Veteran’s marriage to his second spouse was legally terminated by divorce.  
4. At the time of the Veteran’s August 1992 divorce, he and the appellant were cohabiting and holding themselves out as husband and wife and as such, are considered to have been common law married in the State of Colorado.  
5. In April 1993, the Veteran and the appellant separated due to the Veteran’s abuse of alcohol and his abusive actions when intoxicated.  They did not cohabitate prior to his death, nor were they legally divorced and the Veteran did not remarry.  
6. The Veteran died in October 2003.  The immediate cause of death was cardiopulmonary arrest, due to, or as a consequence of, severe hepatic encephalopathy, Lannec’s Cirrhosis, and chronic alcoholism.   
7. From May 28, 1970 to February 6, 2001, the Veteran was rated totally disabled based on unemployability due to service connected disabilities (TDIU).  From February 6, 2001 to the time of his death, the Veteran had a 100 percent schedular rating.  
CONCLUSIONS OF LAW
1. The criteria for the appellant’s recognition as the Veteran’s surviving spouse, for the purpose of receiving VA benefits, are met.  38 U.S.C. §§ 101, 103, 5107; 38 C.F.R. §§ 3.1(j), 3.5, 3.50, 3.52, 3.53.
2. The criteria for entitlement to DIC benefits under 38 U.S.C. § 1318 are met.  38 U.S.C. § 1318; 38 C.F.R. §§ 3.22, 4.16(a).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Marine Corps from June 1967 to December 1968.  
This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which found the appellant was not a surviving spouse of the Veteran for purposes of receiving VA benefits.  
The appellant and a friend testified at a video teleconference hearing before the undersigned Veterans Law Judge in July 2017.  A transcript of that hearing has been added to the claims folder.  
DIC
1. Recognition of the appellant as the surviving spouse of the Veteran, for the purpose of receiving VA benefits, is granted. 
The appellant contends that she is the surviving spouse of the Veteran.  She asserts that they entered into a common law marriage in Colorado in August 1992 and cohabited with each other until his alcoholism and physical abuse became such a safety concern for her and their mutual children that the couple agreed to live apart.  After a review of the evidence of record, the Board finds that the preponderance of the evidence supports the appellant’s contention that she is the Veteran’s surviving spouse, for the purpose of receiving VA benefits.  
The appellant and the Veteran were initially married by ceremony from April 1975, until their divorce October 1981.  They had 3 children together during this time.  
The appellant did not remarry; however, the Veteran remarried.  He remained in this marriage until August 1992, when the Veteran and his second spouse were officially divorced.  
Prior to his second divorce, the Veteran resumed cohabiting with the appellant in August 1991.  From the time of his August 1992 divorce, the Veteran and the appellant cohabited and held themselves out as a married couple.  According to the appellant’s July 2017 hearing testimony, she and the Veteran shared all the finances and financial obligations during this period.  She also stated at her hearing that she remembered that the Veteran was listed as her spouse for health insurance purposes.  
In April 1993, the Veteran, who struggled with alcohol addiction, was in a physical altercation with his and the appellant’s teenage son.  After this incident, the Veteran and the appellant agreed that the Veteran should leave the residence they shared, and move to Cheyenne, Wyoming, where he would he would have better access to VA mental health care and substance abuse treatment.  The appellant contends that from April 1993, she saw the appellant a few times a year, but asserts that they were in daily communication.  At no time were they legally divorced.    
The Veteran died in October 2003.  At a September 2003 mental health appointment, shortly before his passing, the Veteran stated that he had been divorced three times; however, he did not provide any dates at that time.  At an earlier May 2000 VA treatment appointment, the Veteran stated that he had been married three times.  First from 1965 to 1970 with no children, then again from 1974 to 1980 with three children, and a third time from 1991 to 1993.  It is unclear if this final instance he mentioned was his common law remarriage to the appellant or whether this was his legal marriage, which was dissolved in August 1992.  However, as the Veteran resumed cohabiting with the appellant in August 1991 and separated in April 1993, it seems that this final marriage he described was his common law remarriage to the appellant.  However, the Board notes there is no evidence that this common-law marriage was ever legally dissolved.  
Marriage, as defined by VA regulations, means 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 C.F.R. § 3.1(j).  The parties resided together in Colorado in August 1992, and so the Board will consider whether their marriage was valid under the law of Colorado.  
According to Colorado law, a common law marriage is established between parties of contracting capacity when there is mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship, evidenced by cohabitation and a general understanding among neighbors and acquaintances that they are living together as husband and wife.  Taylor v. Taylor, 50 P. 1049 (1897); People v. Lucero, 747 P.2d 660 (1987).  
Consent or agreement must be manifested by conduct that gives evidence of the mutual understanding of the parties. The existence of common law marriage has come to depend to a very great extent upon the duration and character of the relationship between the parties. The two factors that most clearly show an intention to be married are cohabitation and a general understanding or reputation among persons in the community which the couple lives that the parties hold themselves out as husband and wife. Specific behavior that may be considered includes maintenance of joint banking and credit accounts, purchase and joint ownership of property, the use of the man’s surname by the woman, the use of the man’s surname by children born to the parties, and the filing of joint tax returns. Lucero, 747 P.2d at 665.  
In cases such as this one, in which the common law marriage is a “remarriage,” the Colorado Supreme Court has set forth a more lenient standard, “less exacting and scrupulous” than for determining the existence of a common law marriage.  See In re Estate of Peterson, 148 Colo. 52, 365 P.2d 254 (1961).  Peterson “holds that the evidence in such cases may be less than the positive and convincing proof necessary to establish a common law marriage.”  Ward v. Terriere, 153 Colo. 326, 331-32, 386 P.2d 352, 355 (1963), (citing Peterson, 148 Colo. 52, 365 P.2d 254 (1961)).  
In support of the appellant’s claim that she and the Veteran were married under the common law of Colorado, the appellant has submitted a July 2017 statement from her daughter, who is also the Veteran’s daughter, stating that the appellant and the Veteran had reconciled after their initial divorce, and had moved back in together in 1992.  She stated that the family traveled together, and held themselves out as a family.  She further stated that her parents separated a week before her high school graduation because of the Veteran’s alcoholism.  She stated the Veteran would become “hostile and violent” when intoxicated.  She stated that the family’s hope was that he would be able to complete a treatment program.  
The appellant also submitted a July 2017 letter from her aunt, which described the Veteran as the appellant’s husband.  The appellant’s aunt stated that she attended many parties at the family’s home from August 1992 to April 1993 and that she believed the appellant and the Veteran were married.  
The appellant also submitted a July 2017 letter from her former boss, an attorney who handled the Veteran’s second divorce in 1992.  In this letter, the writer explained that her family and the appellant’s and Veteran’s family became close while the appellant worked for her, even taking vacations together.  One of the appellant’s and Veteran’s children served as the “God Father” at her daughter’s baptism.  She stated that she knew the appellant and the Veteran as “Husband and Wife.”  
Considering this evidence, and the relaxed standard of proof for common law “remarriage” in the State of Colorado, the Board finds that a common law marriage existed between the appellant and the Veteran at the time of his legal divorce from his second wife in August 1992.  The preponderance of the evidence of record demonstrates that the couple cohabitated at the time, and held themselves out as a married couple.  Lucero, 747 P.2d at 665.  They shared a home, financial responsibility for the upkeep of the home, and provided jointly for their three children.  They held themselves out as a couple in a way that led friends and family to believe they were married.  The Board particularly notes that the standard does not require any defined period of cohabitation to establish a common law marriage in Colorado.  As such, the fact that the appellant and Veteran were only cohabiting for around 8 months as a common law married couple is not relevant for this determination.  
Further, the record does not contain any evidence that this common law marriage was terminated.  While the Veteran mentioned a 1993 divorce at a May 2000 VA mental health treatment appointment, there is no decree from a court of competent jurisdiction of record declaring an end to the common law marriage between the appellant and the Veteran.  The Board takes this to mean that the appellant understood himself to have been married to the appellant in 1993, although he may have been mistake as to whether their marriage was legally dissolved.  
The appellant has testified that they were never legally divorced after their common law “remarriage.”  Further, the appellant’s daughter’s letter does not indicate that divorce proceedings were ever initiated.   There is no evidence of record indicating a divorce ever took place to end this second common law “remarriage” between the appellant and the Veteran.  
As the evidence indicates the couple was legally married under the common law of Colorado, and that there was no legal end to that union under the law of Colorado or any other state, the Board finds the appellant was legally married to the Veteran.  38 C.F.R. § 3.1(j).  The Board now turns to the question of whether the appellant can be considered a “surviving spouse” for purposes of receiving VA benefits.  
VA regulations define a “surviving spouse” as an individual who was the spouse, as defined in 38 C.F.R. 3.1(j), of the veteran at the time of the veteran’s death and “(1) [w]ho 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) [e]xcept as provided for in § 3.55, has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex 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).  The requirement that there be continuous cohabitation from the date of marriage until the date of death of the veteran will be considered to have been met when the evidence shows that “any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse.”  38 C.F.R. § 3.53(a).  The surviving spouse’s statement regarding the reason for the separation “will be accepted in the absence of contradictory information.”  38 C.F.R. § 3.53(b).  
Considering this standard, the Board finds that the appellant is a “surviving spouse” for purposes of receiving VA benefits.  As noted above, the Board has already determined that she is a spouse under the common law of Colorado, and as such, is considered a “spouse” by VA.  She meets the standard of being a “surviving spouse” because, although not cohabitating, she was legally married to the Veteran at the time of his death, and was only separated from the Veteran due to the Veteran’s own misconduct.  The appellant stated that she and the Veteran separated due to his tendency to be violent when he was intoxicated.  This is consistent with the evidence of record, statements from the appellant and Veteran’s daughter, and a family friend, as well as the appellant’s death certificate which notes his chronic alcoholism as an underlying cause of death.  Further, there is no other evidence which provides “contradictory information” to this report.  
Therefore, the Board finds the preponderance of the evidence indicates that the appellant was married to the Veteran at the time of his death, and that they were not cohabiting due to the Veteran’s own misconduct.  As such, the Board concludes that the appellant is a surviving spouse, for purposes of entitlement to VA benefits.  38 C.F.R. §§ 3.50, 3.53.   
2. Entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C. § 1318 is granted.
Pursuant to 38 U.S.C. § 1318, DIC benefits are payable to the surviving spouse of a deceased veteran, in the same manner as if the death were service connected, if such veteran died not as the result of his own willful misconduct and was, at the time of his or her death, either in receipt of or entitled to receive compensation for service-connected disability rated totally disabling if: (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; or (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of such veteran’s discharge or other release from active duty; or (3) the veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death.  38 U.S.C. § 1318; 38 C.F.R. § 3.22.  
As an initial matter, the Board notes that upon the Veteran’s death, a December 2003 rating decision found that a valid claimant would be entitled to DIC benefits under 38 U.S.C. § 1318.  No one claimed DIC benefits at that time.  It was noted that the appellant was rated totally disabled for a period of more than 10 years preceding his death, and that he did not die of his own willful misconduct.  See 38 C.F.R. § 3.301(c)(2) (providing that “[o]rganic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered willful misconduct origin.”).  
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As the appellant has been found to be a surviving spouse, and the Veteran was rated totally disabled for at least 10 years prior to his death, which did not result from his own willful misconduct, the Board concludes that the appellant is entitled to DIC benefits under 38 U.S.C. § 1318.
 
K. Conner
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Kleponis, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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