DEPARTMENT SERVICE OFFICER NEWSLETTER

Department Service Office Business Hours: The Department Service Office will be open each Monday through Friday from 8:00 AM until 4:00 PM. Appointments are not necessary for visits. You may contact the Department Service Office by calling (603) 222-5784, faxing (603) 222-5787; or by using the following e-mail address: Gary.Wayman@VBA.VA.GOV.

an act relative to the employment of veterans on veterans day (hb 90): Governor John Lynch (NH) will sign into state law “An act relative to the employment of veterans on veterans day (HB 90) this Friday, August 14^th, 2009 at the NH State House. The signing will take place in the NH State House Governor and Executive Council Chambers at 10:00 a.m.

HB 90 allows honorably discharged veterans no longer active in the United States armed forces to have a preference not to work on Veterans Day. This bill also allows emergency responders and certain medical personnel who are honorably discharged veterans no longer in the United States armed forces to have a preference not to work on Veterans Day so long as another emergency responder is available.

manchester vamc to hold stakeholders meeting: You are INVITED and encouraged to join in a meeting and conversation with VISN 1 Network Director, Michael F. Mayo-Smith, MD, MPH, on Friday, August 14, 2009 in the Training and Education Room at the Manchester VA Medical Center from 1:30 p.m. until 3:00 p.m.

The topic of this forum is the expansion of the Acute Inpatient Care Contract with Concord Hospital. We hope you will take this opportunity to learn more specific information regarding the services and benefits for enrolled Veterans with this affiliated agency. This is not a press conference but an informational meeting.

Thomas G. Schubert Agent orange fairness act (introduced in house) H.r. 3491 title: To amend title 38, United States Code, to establish a presumption of service connection for certain cancers occurring in veterans who served in the Republic of Vietnam and were exposed to certain herbicide agents, and for other purposes. For more information go to The Library of Congress website at http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.3491:

Camp lejeune health bill introduced S 1518: To amend title 38, United States Code, to furnish hospital care, medical services, and nursing home care to veterans who were stationed at Camp Lejeune, North Carolina, while the water was contaminated at Camp Lejeune. Senator Richard Burr (R-N.C.), Ranking Member of the Senate Veterans' Affairs Committee, introduced the Caring for Camp Lejeune Veterans Act of 2009.

The legislation would require the Department of Veterans Affairs (VA) to provide health care to veterans and their family members who experienced adverse health effects as a result of exposure to well water contaminated by human carcinogens at Camp Lejeune, N.C. Senator Burr's bill would allow a veteran or military family member who was stationed at Camp Lejeune during the time the water was contaminated to receive needed health care at a VA facility. For more information go to the Library of Congress website at http://thomas.loc.gov/cgi-bin/query/z?c111:S.1518:

Agent orange linked to many ailments: A new report from and the Institute of Medicine panel finds that exposure to Agent Orange may raise the risk of heart disease and Parkinson's disease.

The findings add to a growing list of conditions that could be linked to Agent Orange, including leukemia, prostate cancer, type II diabetes and birth defects in the children of the veterans exposed.

The report "Veterans and Agent Orange" is available on the National Academies Press website.

Gi bill transferability begins: The Post-9/11 GI Bill's option to transfer unused educational benefits to eligible family members became effective Aug. 1, and more than 25,000 servicemembers pre-applied.

The Defense Department's website for requesting the benefit at https://www.dmdc.osd.mil/TEB/ is accessible using a common access card, DOD self-service user identification or a Defense Finance and Accounting Service personal identification number.

Spouses and family members must be enrolled under their servicemember sponsor in the Defense Eligibility Enrollment Reporting System (DEERS) to be eligible for the transfer benefit. Military members can also visit the website.

How to Prove a Valid Marriage for VA Benefits: There are several reasons why a claimant might have to prove the validity of his or her marriage for the purpose of VA benefits. By far the most common reasons for needing to prove a marriage are:

(1) So that the veteran may receive additional compensation or pension benefits for the spouse as a dependent (see 38 U.S.C. § 1115); and

(2) So that an allegedly surviving spouse may be determined entitled to receive dependency and indemnity compensation (DIC) or death pension benefits. In either case, the rules are mostly the same, but to be determined a surviving spouse entails additional requirements, which are discussed below.

Definition of Spouse: A “spouse” is a “person of the opposite sex who is a wife or husband” of the veteran. See 38 U.S.C. § 101(31). In order to be a wife or a husband of a veteran a person must prove to VA that he or she and the veteran have (or had) a “valid” marriage. See 38 C.F.R. §§ 3.50(a), 3.1(j). A marriage can be valid either where the couple resided during the marriage, or where they resided when the right to VA benefits arose. Sanders v. Brown, 6 Vet. App. 17, 19 (1993); see also M21-1MR, Part III, subpart iii, 5.B.6 (a); M21-1MR, Part III, subpart iii, 5.C.12 (a).

Definition of Valid Marriage: In order to create a valid marriage, the two parties must have been “free to marry,” and must have formed a “valid marriage.” The “free to marry” requirement is determined by the law of the state in which the couple resides, but generally means that neither party was previously married, or, if they were, that the marriage was properly dissolved by death, divorce, or annulment, or determined to be void under state law. See M21-1MR, Part III, Subpart iii, Chapter 5, Section B, 5(a). Hopkins v. Nicholson, 19 Vet. App. 165 (2005). There are two primary ways that a couple can form a “valid” marriage (but, as explained in greater detail later in this article, for individuals trying to prove surviving spouse status, there may be a legal marriage even where there was no traditional marriage and where the couple did not have a recognized common law marriage):

Traditional Marriage: The first is the most common: traditional or ceremonial marriage. This is where a couple is married in a ceremony, whether that ceremony was religious in nature, or just a trip to the courthouse. In a traditional or ceremonial marriage, a certificate is issued by the state validating the marriage, and the marriage is officially registered by the state.

Common Law Marriage: The second primary way a couple can become “legally” married is through what is known as “common law” marriage. Again, the common law marriage can exist either in the state or country where the couple lived during the marriage, or in the state or country where the couple lived when the right to the benefits arose. See M21-1MR, Part III, subpart iii, 5.B.6 (a); M21-1MR, Part III, subpart iii, 5.C.12 (a). The rules for common law marriage differ from state to state and country to country, and some states and countries do not recognize common law marriage at all. See M21- 1MR, Part III, subpart iii, 5.C.12 (d). Common law marriage generally requires the couple to do some or all of the following: (1) live together for a certain period of time; (2) form an agreement to be married; and (3) hold themselves out to the public as husband and wife. The “agreement” can be explicit, or it can be inferred from the parties’ conduct at the time. See M21-1MR, Part III, subpart iii, 5.C.12 (d). “Holding themselves out to the public as married” is generally the most important element in proving a common law marriage. It generally means that the couple represented themselves to the public as married, and/or that they were known in the community as a married couple. This can be established through statements of persons in the couple’s community who knew the parties as a married couple, and/or through public documents (such as lease agreements, tax forms, employment records, utility bills, legal papers, etc.) in which the parties represented themselves as married. See M21-1MR, Part III, subpart iii, 5.C.12 (e)-(g).

Evidence Needed to Prove a Marriage: Generally, the VA will accept a written statement of both parties’ marital history as proof of both the freedom of both parties to marry and the creation of a valid marriage. See 38 C.F.R. § 3.204; see also M21-1MR, Part III, subpart iii, 5.B.5(c). This statement is usually included in an application for VA benefits (VA Form 21-526), as well as in the standard Declaration of Status of Dependents form (VA Form 21-686c).

Written Statement: The written statement must list all prior marriages and must contain the first and last names of any prior marriage partners; a statement as to how the prior marriage(s) terminated (divorce, death, etc.); the date the prior marriage(s) terminated (or at least the month and year); and the place(s) (city and state) where the prior marriage(s) were officially terminated. M21-1MR, Part III, subpart iii, 5.B.6 (a). As long as the statement has these details about any past marriages, and does not raise any particular questions as to the statement’s accuracy, the VA will usually accept it as proof of marriage. M21-1MR, Part III, subpart iii, 5.B.5 (f).

When Additional Documents Are Needed: In certain circumstances, the VA will require that a claimant submit one or more documents to verify that a valid marriage took place and, where applicable, that any prior marriages were dissolved. These include cases in which the claimant does not reside in a state; the claimant’s statement raises a question as to the validity of the marriage; there is conflicting information of record; or there is “reasonable indication” of fraud or misrepresentation. See 38 U.S.C. § 5124(c); 38 C.F.R. § 3.204(a) (2).

What Additional Documents to Submit when Proof is Necessary: Where proof of marriage is required, a claimant should submit any one of the following documents to the VA. The following are listed by order of preference:

A copy or summary of the public or ceremonial record of marriage;
An official report from the military branch as to the marriage occurring during the veteran’s service;
An affidavit from the clergy member or magistrate who officiated at the wedding;
The original certificate of marriage; or
Affidavits or certified statements from two or more eyewitnesses to the ceremony.

In the event that none of the other documents are available, the claimant can submit any other secondary evidence which reasonably supports a belief that a valid marriage occurred. See 38 C.F.R. § 3.205(a); M21-1MR, Part III, subpart iii, 5.B.6(c).

Documents to Submit to Prove Common Law Marriage: Claimants trying to prove a common law marriage should submit additional facts about the common law marriage and supplemental statements by two or more eyewitnesses. See 38 C.F.R. § 3.205(a) (6).

For Proof of Previous Divorce, Dissolution, or Annulment: Where the VA requests further proof of a previous divorce, dissolution, or annulment, the claimant should submit the decree of divorce, dissolution, or annulment. See 38 C.F.R. §§ 3.206 (divorce), 3.207(b) (annulment). A claimant alleging that a previous marriage was void should submit a certified statement explaining why the marriage was void along with evidence supporting that determination. See 38 C.F.R. § 3.207(a).

Definition of Surviving Spouse: A surviving spouse must prove that he or she was the valid spouse of the veteran at the time of the veteran’s death. See 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). See Sanders v. Brown, 6 Vet. App. 17, 19 (1993), Aguilar v. Derwinski, 2 Vet. App. 21 (1991) (claimant’s burden of proof). Generally, this will require the surviving spouse to prove that he or she had a valid marriage in the exact same way he or she would prove it if the veteran were still living – by the rubric laid out above. However, there are both relaxed rules and additional rules for surviving spouses. First, we will explore the relaxed rule — the “deemed valid” marriage rule.

The Relaxed Rule for Surviving Spouses:

Deemed Valid Marriage—Relaxed Rule: In a “deemed valid” marriage, if it were not “for the existence of a legal impediment, a valid marriage would exist.” See 38 U.S.C. § 103(a); 38 C.F.R. § 3.52. As long as the claimant (the spouse) was unaware of the legal impediment, the marriage will be deemed valid for the purpose of VA benefits. 38 U.S.C. § 103(a); see also Dedicatoria v. Brown, 8 Vet. App. 441 (1995). A common example of what might be a deemed valid marriage is where the claimant lived with the veteran in what the claimant sincerely believed to be a valid “common law” marriage, but the state or country in which the couple lived did not recognize common law marriage. See VA Gen. Coun. Prec. 58-91 (July 7, 1991); Colon v. Brown, 9 Vet. App. 104, 107-08 (1996); Sandoval v. Brown, 7 Vet. App. 7, 8-10 (1994).

Requirements for a Deemed Valid Marriage: A claimant will not be able to qualify under the “deemed valid” marriage exception unless the following are ALL true: no legal spouse has already been awarded benefits as the veteran’s surviving spouse (38 U.S.C. § 103(a); 38 C.F.R. § 3.52(d)); and either (a) the claimant lived with the veteran for at least one year immediately prior to the veteran’s death, if the couple had no children, or (b) the claimant lived with the veteran for any length of time and the couple had ever had a child (either before or during the “marriage”). 38 U.S.C. § 103(a); 38 C.F.R. § 3.52(a).

The “Deemed Valid” Marriage Exception in Action: L’Amour v. Peake, 544 F.3d 1317 (Fed. Cir. 2008): In L’Amour, the widow of a veteran filed a claim for DIC benefits. Her claim was denied by the VARO on the grounds that she and the veteran had only been married for nine days prior to his death, not the statutory minimum of one year. The widow appealed to the BVA, claiming that she and the veteran had lived together as husband and wife for many years prior to their actual marriage. Her appeal was denied by the BVA because the Philippines do not recognize “common law” marriage. The widow later requested that her claim for DIC be reopened, stating that she had had no knowledge of the law governing common law marriage in the Philippines and submitting evidence indicating that she and the veteran had believed themselves to be married. The new evidence submitted included a sworn affidavit, joint bank account records, a letter from a credit union, and a letter which the deceased veteran had written during his lifetime stating that he was supporting the widow. The BVA rejected all of the evidence as immaterial and irrelevant to whether the widow claimant’s marriage could be deemed valid. The case was appealed to the CAVC and the CAVC affirmed the BVA decision. The widow appealed her case to the Federal Circuit. The Federal Circuit noted that under VA regulations, when marriage is invalid by reason of a legal impediment, it can still be “deemed valid.” 38 U.S.C. § 103(a), 38 C.F.R. § 3.52. The Federal Circuit point out that the “deemed valid” exception can apply to a “lack of knowledge of a law prohibiting particular marriages.” VA Op. Gen. Counsel Prec. 58-91, at 5 (June 17, 1991). The Federal Circuit also cited a nonprecedential CAVC case in explaining that 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 the invalid marriage was contracted.” Custodio v. Nicholson, 21 Vet. App. 410, 2006 WL 3007188, at *3 (Vet. App. 2006) (non-precedential single-judge decision). The CAVC’s failure to consider the evidence that the widow was unaware of the legal impediment to her marriage required that the case be vacated and remanded.

Additional Requirements for Surviving Spouses: As mentioned above, there are some additional requirements that surviving spouses have to meet, above and beyond the requirements for spouses of living veterans. These requirements (which do not apply in all cases) are: the one-year marriage requirement; the continuous cohabitation requirement; and (in limited cases) the no remarriage requirement. See 38 U.S.C. § 101(3).

One-Year Marriage Requirement: The “one-year marriage” requirement states that, generally, a surviving spouse must have been married to a veteran for at least one year prior to the veteran’s death in order to qualify for DIC or death pension. See 38 U.S.C. §§ 1102, 1304, 1318, 1541(f) (2); 38 C.F.R. § 3.54 (a) (1); see also VA Gen. Coun. Prec. 8-00 (Jul. 25, 2000). There are, however, several cases in which this requirement does not apply. They are the following: (a) if the marriage to the veteran occurred before or during the veteran’s service (see 38 C.F.R. § 3.54); (b) if a child was born to the couple at any time (see 38 U.S.C. §§ 1102(a)(3), 1304(3), 1318(c)(2), 1541(f)(3); 38 C.F.R. § 3.54(a)(2)); (c) in the context of death pension, if the marriage took place before certain specified dates (see 38 U.S.C. § 1541(f)(1); 38 C.F.R. § 3.54(a) (3)); and (d) in the context of DIC, if the marriage occurred before the expiration of 15 years after termination of the period of service in which the injury or disease that caused the veteran’s death was aggravated or incurred (38 U.S.C. §§ 1102(a)(1), 1304(1); 38 C.F.R. §§ 3.54(b), (c)). This last exception to the one-year marriage requirement applies to DIC awarded under 38 U.S.C. § 1310 (claims based on service connection for the cause of death), but does not seem to apply where the surviving spouse is eligible for DIC under 38 U.S.C. § 1318 (due to the veteran’s total disability from service-connected conditions for at least 10 years (or 5 years or 1 year, in certain cases) prior to death).

Continuous Cohabitation Requirement: The “continuous cohabitation” requirement does not require the surviving spouse and the veteran to have lived together for their entire lives. See 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b) (1). Any separations that had ended by the time of the veteran’s death are irrelevant. The couple can also be separated at the time of the veteran’s death provided one of the following is true: (a) the separation was due to the misconduct of, or procured by, the veteran (38 U.S.C. § 101(3)); (b) the separation was by mutual consent and there was no showing of an intent on the part of the surviving spouse to desert the veteran (38 C.F.R. § 3.53(b); Alpough v. Nicholson, 490 F.3d 1352 (Fed. Cir. 2007)); or (c) the claimant was not materially at fault in the separation. See Gregory v. Brown, 5 Vet. App. 108, 113 (1993); Westberry v. Principi, 255 F.3d 1377 (Fed. Cir. 2001). The first and last of these exceptions, can be quite similar in some cases.

The Continuous Cohabitation Requirement in Action: Alpough v. Nicholson, 490 F.3d 1352 (Fed. Cir. 2007) In Alpough, the veteran and the claimant were validly married, but had separated prior to the veteran’s death. It was clear based on an earlier application for service connection (made while the veterans was alive), and on the claimant’s application for DIC, that the two had mutually agreed to live separately because they “could not get along.” Both the BVA and the CAVC held that the claimant could not be the veteran’s surviving spouse because they were separated at the time of the veteran’s death, and the separation was not due to the veteran’s misconduct.

The widow appealed to the Federal Circuit. The Federal Circuit found that, typically, a surviving spouse must have had “continuous cohabitation” with the veteran from the date of the marriage to the date of the veteran’s death. However, an exception exists when the separation was due to the veteran’s misconduct OR was procured by the veteran, through no fault of the spouse. 38 U.S.C. § 101(3). The Federal Circuit held that the CAVC misinterpreted the exception by requiring a showing of misconduct by the veteran in order for the widow to qualify. The CAVC ignored the exception for separations “procured by” the veteran. Id. The Federal Circuit found that the statute was unclear on what sort of separation could be “procured by” the veteran and still not disqualify the surviving spouse, so it turned to the VA regulations. The Federal Circuit stated that the regulations directly addressed the issue of mutual separation, stating that so long as the separation was mutual and did not show intent on the part of the surviving spouse to desert the veteran, continuity of cohabitation exists. 38 C.F.R. § 3.53(b). According to the Federal Circuit, the key was whether the reason for the separation showed intent on the part of the surviving spouse to desert the veteran. The Federal Circuit then explored the meaning of desert. Using common law principles of family law, the Court found that generally a mutually agreed upon separation does not constitute desertion.

The Federal Circuit held that a mutual decision to separate is not considered desertion unless the separation was the result of misconduct or communication of a definite intent to end the marriage by the surviving spouse. Because the CAVC incorrectly interpreted the controlling statute, the case was remanded.

The “No Remarriage” Requirement: The “no remarriage” requirement has gone through many changes in its history. It is not addressed in this training outline. Information on rules relating to remarriage is discussed in NVLSP’s Veterans Benefits Manual, published by Lexis Law Publishing, order information at http://www.nvlsp.org/Publications/Bookstore/.