Veteranclaims’s Blog

July 16, 2013

Burden v. Shinseki, No. 2012-7096(Decided: July 16, 2013); State Law Applies to Common Law Marriage in Veteran Benefits

Excerpt from decision below;
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.”

============================

United States Court of Appeals for the Federal Circuit
______________________
MICHELE D. BURDEN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2012-7096
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 09-3233, Chief Judge Bruce E.
Kasold.
– – – – – – – – – – – – – – – – – – – – – –
HELEN C. COLEMAN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2012-7122
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 09-3480, Judge Robert N. Davis.
___________________
2 BURDEN v. SHINSEKI; COLEMAN v. SHINSEKI
Decided: July 16, 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, New York, 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 WashBURDEN
v. SHINSEKI; COLEMAN v. SHINSEKI 3
ington, 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 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. See 38 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[.]”).
4 BURDEN v. SHINSEKI; COLEMAN v. SHINSEKI

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 v. SHINSEKI; COLEMAN v. SHINSEKI 5

[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
6 BURDEN v. SHINSEKI; COLEMAN v. SHINSEKI

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.”
BURDEN v. SHINSEKI; COLEMAN v. SHINSEKI 7

Coleman Decision, 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 circumscribed by statute. See 38 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); Morris v. Shinseki, 678 F.3d
1346, 1351 (Fed. Cir. 2012). We conduct a de novo review
of the Veterans Court’s legal determinations. Rodriguez
v. Peake, 511 F.3d 1147, 1152 (Fed. Cir. 2008).
B. DETERMINING THE VALIDITY OF A MARRIAGE
For purposes of obtaining DIC benefits, the validity of
a marriage is determined “according to 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 U.S.C. § 103(c).1
Because both the Burdens and Colemans were residents
of Alabama, there is no dispute that Alabama law must be
1 Section 103(c) provides:
In determining whether or not a person is or
was the spouse of a veteran, their marriage shall
be proven as valid for the purposes of all laws administered
by the Secretary according to 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 U.S.C. § 103(c) (emphasis added).
8 BURDEN v. SHINSEKI; COLEMAN v. SHINSEKI

applied in determining whether they entered into valid
common law marriages. Under Alabama law, the four
elements of a common law marriage are: (1) capacity,
meaning that both parties must be at least fourteen years
old and mentally competent; (2) a present agreement or
mutual consent to enter into the marriage relationship;
(3) a public recognition of the existence of the marriage;
and (4) cohabitation or mutual assumption of marital
duties and obligations. Creel v. Creel, 763 So. 2d 943, 946
(Ala. 2000); Adams v. Boan, 559 So. 2d 1084, 1086 (Ala.
1990). Furthermore, Alabama requires “clear and convincing
proof” to establish the validity of a common law
marriage. Etheridge v. Yeager, 465 So. 2d 378, 380 (Ala.
1985).
On appeal, both Mrs. Burden and Mrs. Coleman
acknowledge that the VA must look to Alabama law in
determining the existence of a valid common law marriage.
They argue, however, that “[a]lthough the elements
of common-law marriage derive from state law,
evidentiary issues are governed by federal law.” In their
view, the VA should have applied section 5107(b)’s “benefit
of the doubt” rule, rather than Alabama’s clear and
convincing proof standard, when determining whether
they had met the prerequisites for establishing a valid
common law marriage. In support, they argue that Alabama’s
clear and convincing proof standard has no place
in the uniquely pro-claimant system for adjudicating
veterans’ claims.
We do not find this reasoning persuasive. As the Veterans
Court correctly concluded, section 103(c) requires
the VA to apply state law, including state law evidentiary
burdens, in determining whether the criteria for a valid
common law marriage have been satisfied. See Burden
Decision, 25 Vet. App. at 183; Coleman Decision, 2012
U.S. App. Vet. Claims LEXIS 350, at *2 n.1.
BURDEN v. SHINSEKI; COLEMAN v. SHINSEKI 9

C. THE STATUTORY LANGUAGE
“If the intent of Congress is clear, that is the end of
the matter; for [a] court . . . must give effect to the unambiguously
expressed intent of Congress.” Chevron U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-
43 (1984) (footnote omitted); see also Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 253-54 (1992) (“We have stated
time and again that courts must presume that a legislature
says in a statute what it means and means in a
statute what it says there.”). Section 103(c) unambiguously
provides that the validity of a marriage must be
“proven” in accordance with “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.” In other words, the statute requires
claimants to prove—i.e., to provide satisfactory evidence
of—the existence of a valid marriage as required by state
law. See Black’s Law Dictionary 1345 (9th ed. 2009)
(stating that the word “prove” means “[t]o establish or
make certain; to establish the truth of (a fact or hypothesis)
by satisfactory evidence” (emphasis added)); see also
id. at 635 (stating that the term “evidence” means
“[s]omething (including testimony, documents and tangible
objects) that tends to prove or disprove the existence of
an alleged fact”). Simply put, a claimant cannot “prove”
that his marriage is valid under the laws of a particular
state unless he supplies the evidence or “proof” that state
law requires.
Certain statutory provisions give the VA broad discretion
to determine the evidence necessary to substantiate
the facts and circumstances pertinent to the award of VA
benefits. See 38 U.S.C § 108(b) (requiring “evidence
satisfactory to the Secretary” to establish that a veteran
who has been missing for an extended period has died);
id. § 6104(a) (providing for the forfeiture of VA benefits if
it is established “by evidence satisfactory to the Secretary”
that a veteran is guilty of treason or other specified
10 BURDEN v. SHINSEKI; COLEMAN v. SHINSEKI

offenses).2 In section 103(c), however, Congress did not
grant the VA authority to determine the appropriate
evidentiary standards, but instead specifically provided
that the validity of a marriage must be “proven” according
to state law.
Alabama recognizes common law marriage and views
it “as a co-equal, alternate method of validating the
connubial union of two people.” Piel v. Brown, 361 So. 2d
90, 93 (Ala. 1978); see also Adams, 559 So. 2d at 1087
(“Once the man and woman have established a present
agreement or mutual consent to enter into the marriage
relationship, permanent and exclusive of all others, a
common law marriage is equal in validity with a ceremonial
marriage.”). Because of “the serious nature of the
marriage relationship,” however, Alabama “courts will
closely scrutinize a claim of common-law marriage and
require clear and convincing proof thereof.” Etheridge,
465 So. 2d at 380 (citations and internal quotations
omitted); see also Goodman v. McMillan, 61 So. 2d 55, 59
(Ala. 1952). We see nothing in the text of section 103(c)
that would permit the VA to disregard Alabama’s rigorous
standard of proof for establishing a valid common law
marriage. To the contrary, the failure to apply the clear
and convincing proof requirement would eviscerate an
essential element of state law. See Cruzan ex rel. Cruzan
v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 283 (1990)
(explaining that a state may adopt a clear and convincing
standard of proof to “reflect the importance of a particular
adjudication” and to “serve[] as a societal judgment about
how the risk of error should be distributed between the
litigants” (citations and internal quotation marks omitted)).
2 As will be discussed more fully in section II E,
Congress also granted the Secretary authority to determine
the evidence necessary to establish a “deemed valid”
marriage under 38 U.S.C. § 103(a).
BURDEN v. SHINSEKI; COLEMAN v. SHINSEKI 11

The plain language of section 103(c), which requires
the VA to look to state law to determine the validity of a
marriage, reflects the fact that matters related to marriage
and domestic relations have long been considered to
be the domain of the states. “[T]he whole subject of the
domestic relations of husband and wife, parent and child,
belongs to the laws of the States and not to the laws of the
United States.” Ankenbrandt v. Richards, 504 U.S. 689,
703 (1992) (citations and internal quotation marks omitted);
see also Sosna v. Iowa, 419 U.S. 393, 404 (1975)
(explaining that the regulation of domestic relations is “an
area that has long been regarded as a virtually exclusive
province of the States”). Indeed, marital status, as defined
by state law, frequently plays a prominent role in
determining eligibility for benefits from the federal government.
3
3 For example, a claimant seeking survivor benefits
under the Social Security Act, 42 U.S.C. § 402, must
establish that his or her marriage was valid under the
law of the state where the wage earner resided. See
Young v. Sec’y of Health & Human Servs., 787 F.2d 1064,
1067 (6th Cir. 1986) (“The Social Security Act applies the
laws of the state wherein the wage earner was domiciled
at death, as interpreted by the courts of that state, to
determine whether the claimant and the deceased wage
earner had been validly married for purposes of the
statute.”). Similarly, under the Federal Coal Mine and
Safety Act, 30 U.S.C. §§ 801, 811, a claimant will be
considered the “spouse” of a miner if “[t]he courts of the
State in which the miner is domiciled would find that
such individual and the miner validly married,” 20 C.F.R.
§ 725.204(a). Under the Family Medical and Leave Act,
29 U.S.C. §§ 2601-54, a “spouse” is defined as “a husband
or wife as defined or recognized under State law for
purposes of marriage in the State where the employee
12 BURDEN v. SHINSEKI; COLEMAN v. SHINSEKI

Significantly, in determining whether a claimant
seeking federal benefits has entered into a valid marriage
under the laws of a particular state, courts apply not only
the substantive elements of state law, but also state law
evidentiary burdens. In Dickey v. Office of Personnel
Management, for example, this court determined that the
District of Columbia’s preponderance of the evidence
standard must be applied in determining the validity of a
common law marriage for purposes of obtaining survivor
annuity benefits from the federal employee retirement
program. 419 F.3d 1336, 1340 (Fed. Cir. 2005). Likewise,
a claimant seeking Social Security survivor benefits must
satisfy the evidentiary burdens required by state law in
order to establish a valid common law marriage. See
Gainey v. Barnhart, 299 F.3d 1004, 1006 n.3 (8th Cir.
2002) (explaining that under Michigan law a common law
marriage must be established by clear and convincing
evidence); Chlieb v. Heckler, 777 F.2d 842, 845 (2d Cir.
1985) (stating that under Ohio law a common law marriage
must be established by clear and convincing evidence);
Weiner v. Astrue, No. 09-7088, 2010 U.S. Dist.
LEXIS 18120, at *13 (S.D.N.Y. Feb. 25, 2010) (explaining
that under the law of the District of Columbia a common
law marriage must be established by a preponderance of
the evidence). We are constrained to follow a similar
approach here.4 We see nothing in section 103(c) that
resides, including common law marriage in States where
it is recognized,” 29 C.F.R. § 825.122(b).
4 Our conclusion that state law evidentiary standards
apply to questions related to the validity of a marriage
is bolstered by cases construing the Federal Tort
Claims Act (“FTCA”), which contains language that is
substantively identical to the phrase “according to the law
of the place” contained in section 103(c). The FTCA
provides:
BURDEN v. SHINSEKI; COLEMAN v. SHINSEKI 13

would permit the VA to disregard state law evidentiary
requirements when determining whether a claimant
entered into a valid common law marriage.
[T]he district courts, together with the United
States District Court for the District of the Canal
Zone and the District Court of the Virgin Islands,
shall have exclusive jurisdiction of civil actions on
claims against the United States, for money damages,
accruing on and after January 1, 1945, for
injury or loss of property, or personal injury or
death caused by the negligent or wrongful act or
omission of any employee of the Government
while acting within the scope of his office or employment,
under circumstances where the United
States, if a private person, would be liable to the
claimant in accordance with the law of the place
where the act or omission occurred.
28 U.S.C. § 1346(b)(1) (emphasis added).
In determining whether a violation of the FTCA has
occurred, courts have applied not only the substantive
elements of state law, but also state law evidentiary
burdens. See Cleveland v. United States, 457 F.3d 397,
403 (5th Cir. 2006) (applying Louisiana’s preponderance
of the evidence standard to a FTCA claim); Littlejohn v.
United States, 321 F.3d 915, 924 (9th Cir. 2003) (explaining
that Nevada’s preponderance of the evidence standard
applies to a medical malpractice claim brought under the
FTCA); Mitchell v. United States, 141 F.3d 8, 13 (1st Cir.
1998) (applying Massachusetts’ preponderance of the
evidence standard to a FTCA claim); Ward v. United
States, 838 F.2d 182, 185 (6th Cir. 1988) (applying Tennessee’s
preponderance of the evidence standard to a
FTCA claim).
14 BURDEN v. SHINSEKI; COLEMAN v. SHINSEKI

D. RESOLVING INTERPRETATIVE DOUBT
“Congress has expressed special solicitude for the veterans’
cause,” and has created a uniquely pro-claimant
system for adjudicating claims for VA benefits. Shinseki
v. Sanders, 556 U.S. 396, 412 (2009); see Henderson ex rel.
Henderson v. Shinseki, 131 S. Ct. 1197, 1204 (2011).
Accordingly, in construing veterans’ benefits legislation
“interpretive doubt is to be resolved in the veteran’s
favor.” Brown v. Gardner, 513 U.S. 115, 118 (1994); see
also Fishgold v. Sullivan Drydock & Repair Corp., 328
U.S. 275, 285 (1946) (explaining that veterans’ “legislation
is to be liberally construed for the benefit of those
who left private life to serve their country in its hour of
great need”). Here, however, this pro-veteran canon of
construction would not necessarily advance the interpretation
of section 103(c) advocated by Mrs. Burden and
Mrs. Coleman. “The applicable statutes that provide
benefits to children of a deceased veteran are different
depending on whether the veteran leaves a surviving
spouse.” Hanlin v. Nicholson, 474 F.3d 1355, 1356-57
(Fed. Cir. 2007); see 38 U.S.C. §§ 1311, 1313. If a veteran
dies and leaves minor children but no surviving spouse,
the VA will provide DIC benefits directly to the veteran’s
children. See 38 U.S.C. § 1313. Thus, when the VA
recognizes a common law marriage as valid for purposes
of awarding DIC compensation to a common law spouse,
the effect may be to reduce the amount of benefits that
are paid directly to the veteran’s children. See Hanlin,
474 F.3d at 1357. Although we are required to resolve
interpretive doubt in the veteran’s favor, Brown, 513 U.S.
at 118, we have no obligation to construe section 103(c) in
a manner that would favor the interests of a veteran’s
purported common law spouse over those of his children.
We reject, moreover, the contention that the “benefit
of the doubt” rule contained in section 5107(b) precludes
the VA from applying state law evidentiary standards to
BURDEN v. SHINSEKI; COLEMAN v. SHINSEKI 15

questions related to the validity of a marriage.5 Section
5107(b) requires that the VA give the veteran the benefit
of the doubt when the evidence regarding any issue
material to his claim is in relative equipoise. See Skoczen
v. Shinseki, 564 F.3d 1319, 1324 (Fed. Cir. 2009). We
have previously held, however, that the benefit of the
doubt rule is inapplicable where a statute or regulation
specifically dictates a different evidentiary standard.
Yates v. West, 213 F.3d 1372, 1375 (Fed. Cir. 2000) (concluding
that section 5107(b)’s benefit of the doubt rule
does not apply when claimants are required to demonstrate
“clear and unmistakable error” in a final VA decision);
see also Deloach v. Shinseki, 704 F.3d 1370, 1380
(Fed. Cir. 2013) (concluding that the Veterans Court,
notwithstanding section 5107(b)’s benefit of the doubt
rule, must review the board’s determinations regarding
whether a disability is service-connected under a clearly
erroneous standard). Here, because Congress has specifically
directed that state law governs questions related to
the validity of a marriage—and Alabama requires clear
and convincing proof to establish a valid common law
marriage—that is the standard of proof that must be
applied under section 103(c). See Morton v. Mancari, 417
U.S. 535, 550-51 (1974) (“Where there is no clear inten-
5 Section 5107(b) provides:
The Secretary shall consider all information
and lay and medical evidence of record in a case
before the Secretary with respect to benefits under
laws administered by the Secretary. When
there is an approximate balance of positive and
negative evidence regarding any issue material to
the determination of a matter, the Secretary shall
give the benefit of the doubt to the claimant.
38 U.S.C. § 5107(b).
16 BURDEN v. SHINSEKI; COLEMAN v. SHINSEKI

tion otherwise, a specific statute will not be controlled or
nullified by a general one, regardless of the priority of
enactment.”); First Nationwide Bank v. United States, 431
F.3d 1342, 1348 (Fed. Cir. 2005) (“As a principle of statutory
interpretation, a specific provision prevails against
broader or more general provisions, absent clear contrary
intent.”).
This does not mean, however, that section 5107(b) has
no applicability in determining whether a purported
common law spouse is entitled to receive DIC compensation.
As the Veterans Court correctly recognized, section
103(c), by its own terms, provides only that the “validity”
of a marriage must be established under state law. Once
the validity of a marriage has been established, “the
‘benefit of the doubt’ doctrine is applicable to the rest of
the entitlement determination, which includes making
determinations about the length of the marriage, when
the marriage began, and whether a child was born to the
marriage.” Burden Decision, 25 Vet. App. at 186.

E. THE INTERPLAY BETWEEN SECTION 103(A) AND
SECTION 103(C)
We must construe the words of a statute “in their context
and with a view to their place in the overall statutory
scheme.” Davis v. Mich. Dep’t of Treasury, 489 U.S. 803,
809 (1989); United Sav. Ass’n v. Timbers of Inwood Forest
Assocs., 484 U.S. 365, 371 (1988) (emphasizing that
“[s]tatutory construction . . . is a holistic endeavor” and
“[a] provision that may seem ambiguous in isolation is
often clarified by the remainder of the statutory scheme”).
A comparison of the language of section 103(a) with that
of section 103(c) reinforces the conclusion that section
103(c) requires the application of state law evidentiary
standards. Section 103(a) provides that a marriage can
be “deemed” valid when a claimant was unaware that
there was a legal impediment to an otherwise valid marriage.
For example, if a claimant married a first cousin
BURDEN v. SHINSEKI; COLEMAN v. SHINSEKI 17

and was unaware that state law prohibited such a marriage,
that marriage could nonetheless be deemed valid
pursuant to section 103(a).6 See Lamour v. Peake, 544
F.3d 1317, 1322-23 (Fed. Cir. 2008). Section 103(a) thus
provides a limited exception to section 103(c)’s requirement
that the validity of a marriage must be established
under state law, and can be invoked only in situations in
which a claimant was unaware that there was a legal
impediment to his or her marriage. See Lamour, 544 F.3d
at 1323; see also Colon v. Brown, 9 Vet. App. 104, 107-08
(1996).
Significantly, section 103(a) specifically says that a
marriage will be deemed valid only if “it is established by
evidence satisfactory to the Secretary” that a putative
6 Section 103(a) in relevant part provides:
Whenever, in the consideration of any claim
filed by a person as the widow or widower of a
veteran for gratuitous death benefits under laws
administered by the Secretary, it is established by
evidence satisfactory to the Secretary that such
person, without knowledge of any legal impediment,
entered into a marriage with such veteran
which, but for a legal impediment, would have
been valid, and thereafter cohabited with the veteran
for one year or more immediately before the
veteran’s death, or for any period of time if a child
was born of the purported marriage or was born to
them before such marriage, the purported marriage
shall be deemed to be a valid marriage, but
only if no claim has been filed by a legal widow or
widower of such veteran who is found to be entitled
to such benefits.
38 U.S.C. § 103(a) (emphasis added).
18 BURDEN v. SHINSEKI; COLEMAN v. SHINSEKI

spouse was unaware of a legal impediment to an otherwise
valid marriage. Thus, section 103(a) expressly
delegates to the VA the authority to determine the evidence
necessary to establish a “deemed valid” marriage.
Section 103(c), by contrast, provides the VA with no such
authority. Instead, as discussed previously, section 103(c)
requires that the validity of a marriage must be “proven”
according to state law. When “Congress includes particular
language in one section of a statute but omits it in
another section of the same Act, it is generally presumed
that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.” Russello v. United
States, 464 U.S. 16, 23 (1983) (citations and internal
quotation marks omitted). The fact that section 103(a)
grants the VA authority to set evidentiary standards—
while section 103(c) does not—buttresses the conclusion
that state law evidentiary standards must be applied in
assessing the validity of a marriage under section 103(c).7
7 Mrs. Burden argues that 38 C.F.R. § 3.205 supports
her contention that federal law should govern
evidentiary questions related to the validity of a marriage.
We disagree. Section 3.205(a) specifies that certain
types of evidence, such as a public marriage record or
an affidavit of the clergyman who officiated at a wedding
ceremony, may be submitted to establish a marriage for
VA benefits purposes. Section 3.205(b) provides, however,
that the evidence listed in section 3.205(a) will suffice to
establish a valid marriage only “[i]n the absence of conflicting
information.” Where, as here, the VA is confronted
with conflicting information regarding whether the
parties entered into a valid common law marriage, the
types of evidence described in section 3.205(a) will not
necessarily suffice to establish the validity of that marriage.
BURDEN v. SHINSEKI; COLEMAN v. SHINSEKI 19

Had Congress intended to provide the VA with authority
to set the evidentiary standards for establishing a valid
marriage under section 103(c), it could have done so
explicitly. See Boyer v. West, 210 F.3d 1351, 1356 (Fed.
Cir. 2000) (“If Congress had similarly intended to permit
consideration of partial non-service-connected loss of
function with respect to hearing, it surely would have
done so with an explicit provision akin to [those contained
in] other subsections” of the statute.)
F. THE VA’S DUTY TO ASSIST CLAIMANTS
Pursuant to section 5103(a), the VA is obligated to notify
claimants of the information needed to substantiate
their claims.8 Mrs. Burden contends that the VA failed to
fulfill this duty because it did not notify her of the evidence
required to establish a deemed valid marriage
under section 103(a). Given that Alabama recognizes
common law marriage, however, it is difficult to see how
there was any “legal impediment” to Mrs. Burden’s mar-
8 In relevant part, section 5103(a) provides:
The Secretary shall provide to the claimant
and the claimant’s representative, if any, by the
most effective means available, including electronic
communication or notification in writing, notice
of any information, and any medical or lay evidence,
not previously provided to the Secretary
that is necessary to substantiate the claim. As
part of that notice, the Secretary shall indicate
which portion of that information and evidence, if
any, is to be provided by the claimant and which
portion, if any, the Secretary, in accordance with
section 5103A of this title and any other applicable
provisions of law, will attempt to obtain on behalf
of the claimant.
38 U.S.C. § 5103(a).
20 BURDEN v. SHINSEKI; COLEMAN v. SHINSEKI

riage. See Lamour, 544 F.3d at 1322-23 (explaining that a
state’s failure to recognize common law marriage can
qualify as a legal impediment to marriage for purposes of
section 103(a)). Mrs. Burden, moreover, failed to raise the
argument that there was any type of legal impediment to
her marriage when she was before the Veterans Court.
Nor did she assert that the VA failed in its duty to notify
and assist her in developing a claim based upon a deemed
valid marriage under section 103(a). Because Mrs. Burden
did not properly raise the issue of whether the VA failed to assist her in substantiating a claim under section 103(a), we decline to consider that issue for the first time on appeal. See Hormel v. Helvering, 312 U.S. 552, 556(1941) (“Ordinarily an appellate court does not give consideration to issues not raised below.”); Minesen Co. v. McHugh, 671 F.3d 1332, 1342 (Fed. Cir. 2012) (“It is well established that federal appellate courts do not consider arguments not timely raised by the parties.”).

III. CONCLUSION
For the foregoing reasons, the judgments of the United
States Court of Appeals for Veterans Claims are affirmed.
COSTS
No costs.
AFFIRMED

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