Carroll v. Wilkie
Decision Date | 30 July 2019 |
Docket Number | 18-1766 |
Parties | Barbara Carroll, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee. |
Court | United States Court of Appeals For Veterans Claims |
Barbara Carroll, Appellant,
v.
Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.
No. 18-1766
United States Court of Appeals For Veterans Claims
July 30, 2019
Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
Justin Daniel, Esq. VA General Counsel (027)
Before TOTH, Judge.
MEMORANDUM DECISION
TOTH, JUDGE
Army veteran Suleyman S. M. B. Al Sharif, formerly known as Ronald Clark, died in 2008. This case concerns whether the woman he first married, Barbara Carroll, is entitled to dependency and indemnity compensation (DIC) as his surviving spouse, or whether the woman he later married and lived with at the time of his death, Lalla R. B. Al Sharif, is the appropriate beneficiary. Although finding no evidence that the veteran's marriage to Ms. Carroll had been legally terminated, the Board ruled against her, concluding that she procured the separation between herself and the veteran. It reached this conclusion solely because she had filed an unresolved petition for divorce. The Board's decision cannot be upheld on that basis alone, so the claim is remanded for renewed consideration.
DIC is payable to the surviving spouse of a veteran who died from a service-connected disability. 38 U.S.C. § 1310. A "surviving spouse" must show that she was married to the veteran at the time of his death, lived with him continuously from the date of marriage to the date of death (the "continuous cohabitation" requirement), and hasn't remarried or lived with another person and held herself out publicly as the spouse of that person. Alpough v. Nicholson, 490 F.3d 1352, 1355 (Fed. Cir. 2007).[1] Both women claimed this benefit when the veteran died. VA originally granted Ms. Carroll entitlement, but when Ms. Al Sharif challenged that decision, the Board reversed course and found in her favor. That decision is appealed here.
There are several undisputed facts. Ms. Carroll married the veteran in 1989. She filed for divorce in 1995, but there was no evidence that it was ever finalized. She and the veteran separated at some point, but, because their marriage had not been dissolved through divorce or annulment, she remained his legal wife at the time of his death. And Ms. Al Sharif, unaware of this circumstance, married the veteran in 2003 and lived with him continuously from the date of their marriage until his death.
Based on these circumstances, the Board found that, although Ms. Al Sharif's marriage to the veteran was not legally valid, VA regulations permitted her to be recognized as the surviving spouse as long as "[n]o 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." 38 C.F.R. 3.52(d) (2019). Thus, the question before the Board came down to whether Ms. Carroll, the veteran's legal wife who filed a claim, was "entitled" to the benefits.
As mentioned, there is no dispute that Ms. Carroll and the veteran separated and that she did not live with the veteran continuously until the time of his death. But a surviving spouse may...
To continue reading
Request your trial