Burden v. Shinseki

• Decision Date: 30 September 2013
• Docket Number: 2012–7122.,Nos. 2012–7096,s. 2012–7096
• Parties: Michele D. BURDEN, Claimant–Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee. Helen C. Coleman, Claimant–Appellant, v. Eric K. Shinseki, Secretary of Veterans Affairs, Respondent–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

727 F.3d 1161

Michele D. BURDEN, Claimant–Appellant,

v.Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee.

Helen C. Coleman, Claimant–Appellant,

v.Eric K. Shinseki, Secretary of Veterans Affairs, Respondent–Appellee.

Nos. 2012–7096, 2012–7122.

United States Court of Appeals,Federal Circuit.

July 16, 2013.

Rehearing and Rehearing En Banc Denied in No. 2012-7122 Sept. 26, 2013.

Rehearing and Rehearing En banc Denied in No. 2012-7096 Sept. 30, 2013.

Martin V. Totaro, MoloLamken, LLP, of Washington, DC, argued for claimant-appellant in appeal no. 2012–7096. With him on the brief was Robert K. Kry.

Elizabeth M. Hosford, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee in appeal no. 2012–7096. With her on the brief were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Tracey P. Warren, Attorney, United States Department of Veteran Affairs, of Washington, DC. Of counsel was Katy M. Bartelma, Trial Attorney, United States Department of Justice, of Washington, DC.

Jennifer C. Tempesta, Baker Botts, L.L.P., of New York, NY, argued for claimant-appellant in appeal no. 2012–7122.

Katy M. Bartelma, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee in appeal no. 2012–7122. With her on the brief were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Kirk T. Manhardt, Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Lara K. Eilhardt, Attorney, United States Department of Veterans Affairs, of Washington, DC. Of counsel were Elizabeth Marie Hosford, Senior Trial Counsel, United States Department of Justice, of Washington, DC; and Jonathan Elliott Taylor, Attorney, United States Department of Veteran Affairs, of Washington, DC.

Before DYK, MAYER, and MOORE, Circuit Judges.

MAYER, Circuit Judge.

Michele D. Burden (“Mrs. Burden”) and Helen C. Coleman (“Mrs. Coleman”) appeal final judgments of the United States Court of Appeals for Veterans Claims (“Veterans Court”) denying their claims for dependency and indemnity compensation (“DIC”). See Burden v. Shinseki, 25 Vet.App. 178 (2012) ( “Burden Decision ”); Coleman v. Shinseki, No. 09–3480, 2012 WL 638764, 2012 U.S.App. Vet. Claims LEXIS 350 (Feb. 29, 2012) (“Coleman Decision ”). Because we conclude that the Veterans Court correctly determined that state law, including state law evidentiary burdens, must be applied in determining the validity of a purported common law marriage, we affirm.

I. Background

A. Mrs. Burden's Appeal

Louis Burden (“Burden”), a Vietnam veteran, served on active duty in the United States Army from January 1948 until October 1968. He married Mrs. Burden in a ceremonial marriage on April 27, 2004. Two months later, on June 30, 2004, Burden died. In August 2004, Mrs. Burden applied for DIC benefits, but a regional office (“RO”) of the Department of Veterans Affairs (“VA”) denied her claim, concluding that she was ineligible for benefits because she had not been married to Burden for at least one year prior to his death. See38 U.S.C. § 1102(a) (“No compensation shall be paid to the surviving spouse of a veteran under this chapter unless such surviving spouse was married to such veteran ... for one year or more[.]”).

In response, Mrs. Burden submitted a “Statement of Marital Relationship” in which she asserted that she and Burden had been living in a common law marriage for five years prior to his death. She also provided the RO with a number of lay statements supporting her claim that she had lived with Burden as man and wife in a common law marriage for several years prior to his death. After the RO again denied her claim, Mrs. Burden appealed to the Board of Veterans' Appeals (“board”). She provided the board with additional evidence to support her claim that she had entered into a valid common law marriage prior to the date of her ceremonial marriage, including a photocopy of a church raffle ticket that had been purchased in 2001 by “Lou and Michele Burden,” and a statement from a long-time friend of the Burdens who asserted that the couple had lived “as husband and wife” during the last six years of Burden's life.

Although the board acknowledged that Mrs. Burden had provided some evidence to support her claim that she had entered into a common law marriage prior to the date of her ceremonial marriage, it concluded that such evidence did not constitute the “clear and convincing proof” required to establish a valid common law marriage under Alabama law. The board noted that during his lifetime Burden had “provided no statements suggesting that he had consented to enter” into a common law marriage. To the contrary, Burden had indicated on several occasions that he was not married. In October 1998, Burden told his private physician that he was single and did not “want to get too involved.” In March 1999, Burden informed his physician that he had a “girlfriend,” but did not mention that he had a wife. In a November 2002 application for VA benefits, Burden indicated that he was “[d]ivorced” and stated that his brother, Anthony Burden, was his “nearest relative.” After reviewing this evidence, the board concluded that “[t]here was no indication that [Burden] considered himself married” prior to the time of his 2004 ceremonial marriage.

Mrs. Burden then appealed to the Veterans Court. She asserted that the board erred in applying Alabama's clear and convincing proof standard to the question of whether she had entered into a valid common law marriage. In her view, the board should instead have applied the “benefit of the doubt” rule contained in 38 U.S.C. § 5107(b) to all issues related to her eligibility for DIC benefits. Burden Decision, 25 Vet.App. at 181–82. Mrs. Burden argued, moreover, that the board failed to ensure that she was provided notice, pursuant to 38 U.S.C. § 5103(a), of how to substantiate her claim. Id. at 188–89.

The Veterans Court affirmed the board's decision, concluding that it had properly applied Alabama's clear and convincing proof standard to the question of whether the Burdens had entered into a valid common law marriage prior to their 2004 ceremonial marriage. Id. at 182–86. The court determined that section 5107(b)'s benefit of the doubt rule does not apply when determining the existence of a valid common law marriage because “Congress specifically addressed the standard of proof that must be applied by the Secretary” when it enacted 38 U.S.C. § 103(c). Burden Decision, 25 Vet.App. at 183. The court also rejected Mrs. Burden's argument that the VA had failed to provide her with adequate notice of how to substantiate her claim, explaining that she “had actual knowledge of what was required to establish a common law marriage under Alabama law as evidenced by her submission of evidence and arguments during the adjudication of her claim” before the board. Id. at 189.

B. Mrs. Coleman's Appeal

Willie L. Coleman (“Coleman”) served on active duty in the United States Army from October 1960 until December 1963. He married Mrs. Coleman on November 28, 1969, and the couple had eight children. The Colemans divorced in 1982. Mrs. Coleman asserts, however, that she reconciled with Coleman after their divorce and that they lived together as husband and wife in a common law marriage until the time of his death in June 2001.

In July 2001, Mrs. Coleman filed a claim with the VA seeking DIC benefits, as well as death pension and accrued benefits. The RO denied her claim, however, after concluding that she was not married to Coleman at the time of his death. On appeal, the board affirmed. The board explained that the law of Alabama, where the Colemans resided, must be applied to the question of whether they had entered into a valid common law marriage, and that Alabama requires “clear and convincing proof” of the elements of such a marriage. Although it acknowledged that the Colemans had lived together for periods after their divorce and that Coleman's death certificate indicated that he was married at the time of his death, the board determined that there was insufficient evidence to establish that the Colemans had entered into a valid common law marriage after their divorce. The board noted that in 1983 Coleman informed the VA that he lived alone, and a 1990 VA hospitalization report stated that Coleman was divorced and lived with his grandmother. Furthermore, when Mrs. Coleman filed a claim in 1994 seeking apportionment of Coleman's VA disability benefits, she asserted that she was the “ex-wife of the veteran.” According to the board, such facts were “inconsistent with finding [that Mrs. Coleman] had an agreement or mutual understanding with [Coleman] to enter into a marriage relationship following their divorce in 1982.”

Mrs. Coleman then appealed to the Veterans Court, arguing that the board had failed to consider all the evidence of record in denying her claim for VA benefits. The court affirmed the board's decision, concluding that it had not “erred in any facet of its evaluation of the evidence” or in its “application of law and regulation.” Coleman Decision, 2012 WL 638764, at *2, 2012 U.S.App. Vet. Claims LEXIS 350, at *6.

II. Discussion

A. Standard of Review

Our jurisdiction to review decisions of the Veterans Court is circumscribedby statute. See38 U.S.C. § 7292. Although we are vested with authority to decide all relevant questions of law, we are without jurisdiction, unless an appeal presents a constitutional issue, to review factual determinations or the application of law to the facts of a particular case. Id.; see Reeves v. Shinseki, 682 F.3d 988, 992 (Fed.Cir.2012); ...