Burden: DIC and Common Law Marriages

Michele D. Burden v. Eric K. Shinseki, Opinion Number 09-3233, decided February 1, 2012 addressed a widow’s common law marriage and entitlement to DIC.

The widow was married to the veteran 2 months before his death. The VA determined she was not entitled to DIC benefits because she was not married for at least a year before the veteran’s death as required by 38 USC section 1102. The widow argued and submitted evidence of a common law marriage for over 5 years prior to the veteran’s death. The VA determined the widow and veteran was residents of Alabama and accordingly looked at Alabama law on common law marriages. Alabama law requires clear and convincing proof to establish a common law marriage and the VA decided the evidence was not clear and convincing of a common law marriage.

The widow argued the VA erred in applying Alabama’s clear and convincing proof requirement to establish a common law marriage and argued for a benefit of the doubt standard as provided by 38 USC section 5107(b).

The Court determined the clear and convincing proof standard should apply and then went on to note the VA was justified in finding no common law marriage existed. The Court noted repeated records by Mr. Burden that he was not married (including in a VA application for benefits) as well as various statements that inconsistently discussed how long they had been married. What is troubling is that most of the inconsistent statements were more than a year before the veteran’s death and could well have been cured by a common law marriage after the statements and still more than a year before the death.

This decision sheds light on a potential problem in jurisdictions that allow common law marriage. It makes clear that the VA can look to the law of the State to determine marriage and suggests a wise veteran might obviate a potential fight for his common law widow by having a ceremony now (while also creating a paper trail in case the veteran dies before a year has elapsed).

In South Carolina, if someone seeks to establish the existence of a common law marriage after the veteran’s death, section 62-2-802(b)(4) of the South Carolina Code (2009) requires proof by clear and convincing evidence. Clear and convincing evidence is that “degree of proof which will produce in the [fact-finder] a firm belief as to the allegations sought to be established. Such measure of proof is intermediate, more than a mere preponderance but less than is required for proof beyond a reasonable doubt; it does not mean clear and unequivocal.” Satcher v. Satcher, 351 S.C. 477, 483, 570 S.E.2d 535, 538 (Ct. App. 2002).

Decided by Chief Judge Kasold, and Judges Hagel and Lance.

Quattlebaum: Reopening a Denied Accrued Benefits Claim

Peggy L. Quattlebaum v. Eric K. Shinseki, Opinion Number 09-3557, decided January 15, 2012 involved a widow’s pursuit of her deceased husband’s accrued benefits.

The widow filed for accrued benefits within one year of her husband’s death and within months was told by the RO via a letter that her husband had no accrued benefits at the time of his death. She waited 5 years before notifying the RO that she had not received any accrued benefits and asked the RO to review the file for a pending claim when her husband died and award any benefits due. The RO again notified her her husband had no claim open when he died. She filed a notice of disagreement and the Board denied reasoning that because she had previously been denied accrued benefits in 2001 her 2006 claim is one to reopen and that because her claim was not filed within 1 year as required by section 5121 denied her claim.

Importantly, section 5121 says that a surviving spouse may stand in the shoes of the veteran and pursue their accrued benefits claim if they file within 1 year after the veteran’s death. Meanwhile, section 5108 says that if new and material evidence is presented regarding a previously denied claim, the VA should reopen the claim.

The Court found that “as long as an accrued benefits claimant submits a claim within one year of the date of death of the veteran, the claim is timely. Once timely submitted and thereafter denied because accrued benefits are deemed not warranted, it is subject to being reopened if the claimant submits new and material evidence. Accordingly, we hold that the Board’s determination that an accrued benefits claim cannot be reopened more than one year after the veteran’s death is not in accordance with law and will be reversed.” Id. at 8-9.

The Court limited the holding by noting the requirement that the claim for accrued benefits be made based on the evidence in the file at the date of death. Id. at 6. It allowed that in some rare circumstances, documents in the Secretary’s possession at the date of death might never have been presented to the agency decisionmakers. Id. at 6.

Decided by Chief Judge Kasold, and Judges Moorman and Davis.