Veteranclaims’s Blog

October 13, 2014

Single Judge Application; Cardona v. Shinseki, Docket No. 11-3083; United States v. Windsor, No. 12-307, 133 S.Ct. 2675 (June 26, 2013); DIC; 38 U.S.C. §§ 101(3) [or] 101(31)

Excerpt from decision below:

The Board acknowledged that Mr. and Mrs. Johnstone “lived together in a committed relationship for approximately 27 years prior to his death,” that she was his “health care proxy and devoted a considerable amount of time and energy caring for [him] prior to his death,” and that she

1 As the Secretary explained in his brief, In light of United States v. Windsor, No. 12-307, 133 S.Ct. 2675 (June 26,  2013), and as noted in the Secretary’s pleadings filed in Cardona v. Shinseki, Docket No. 11-3083, the Secretary will no longer enforce 38 U.S.C. §§ 101(3) [or] 101(31) to the extent that they limit the provision of Veterans’ benefits to married couples of the opposite sex, and to the extent that these provisions preclude recognition of legally valid marriages of same-sex couples, provided, if applicable, that those marriages meet the requirements of 38 U.S.C. § 103(c).Secretary’s Brief at 5 n.2.

2 See supra note 1.
3

reported that both VA and non-VA medical providers recognized her as Mr. Johnstone’s “significant
other.” R. at 5. The Board also acknowledged the numerous statements from friends and family
regarding Mr. and Mrs. Johnstone’s relationship. Nevertheless, the Board determined that “[i]t is
undisputed that both [Mrs. Johnstone] and all who knew her were well aware that the relationship
between [her] and [Mr. Johnstone] did not meet the definition of “marriage” in New York State prior
to December 12, 2007.” R. at 8.”

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-2286
JEANNE MARIE JOHNSTONE, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Jeanne Marie Johnstone, who is self-represented, appeals an
April 2, 2013,
Board of Veterans’ Appeals (Board) decision that denied entitlement to
recognition as veteran
William F. Johnstone’s surviving spouse for the purpose of receiving
dependency and indemnity
compensation benefits. Mrs.Johnstone’s NoticeofAppeal wastimely,
andtheCourt hasjurisdiction
to review the Board decision pursuant to 38 U.S.C. § 7252(a). The parties
neither requested oral
argumentnoridentified issues
thattheybelieverequireaprecedentialdecisionoftheCourt. Because
the Board’s determination that Mrs. Johnstone may not be recognized as a
surviving spouse is not
clearly erroneous, the Court will affirm the April 2013 Board decision.
I. FACTS
Mr. Johnstone served on active duty in the U.S. Army from May 1966 to
February 1968. He
passed away on December 26, 2007. At the time of his death, Mr. Johnstone
was in receipt of VA
disability benefits for numerous conditions, variously rated from 100% to
10% disabling, as well as
special monthly compensation based on the need for aid and attendance.

In January 2008, Mrs. Johnstone submitted an application for dependency
and indemnity
compensation benefits. She submitted evidence that she and Mr. Johnstone
were married on
December 12, 2007. She also submitted numerous statements from friends and
family members
attesting to her 27-year relationship with Mr. Johnstone.
In August 2008, a VA regional office denied Mrs. Johnstone’s claim,
finding that she had not
established entitlement to recognition as a surviving spouse. Mrs.
Johnstone filed a Notice of
Disagreement with that decision and ultimately appealed to the Board.
In April 2013, the Board issued the decision on appeal, finding that Mrs.
Johnstone is not
entitled to recognition as Mr. Johnstone’s surviving spouse for the
purpose of dependency and
indemnity compensation benefits. This appeal followed.
II. ANALYSIS
On appeal, in an informal brief, Mrs. Johnstone appears to argue that the
Board’s decision
is based on a technicality and ignores the substance of her 27-year
relationship with her husband.
She contends that the Board did not properlyapply38C.F.R.§3.205(a)(6),
whichconcernscommon
law marriages. Her arguments are not persuasive.
When a veteran dies “from a service-connected disability,” that veteran’s
surviving spouse
is eligible for dependency and indemnity compensation. 38 U.S.C. § 1310(a
); 38 C.F.R. § 3.5(a)
(2014). A surviving spouse is
a person of the opposite sex who was the spouse of a veteran at the time
of the
veteran’s death, and who lived with the veteran continuously from the date
of
marriageto the date of the veteran’s death (except where there was a
separationwhich
was due to the misconduct of, or procured by, the veteran without the
fault of the
spouse) and who has not remarried or (in cases not involving remarriage)
has not
since the death of the veteran, and after September 19, 1962, lived with
another
person and held himself or herself out openly to the public to be the
spouse of such
other person.
2

38 U.S.C. § 101(3);1
see also 38 C.F.R. § 3.50(b) (2014). A “spouse” is “a person of the
opposite
sex whose marriage to the veteran meets the requirements of [38 C.F.R.] §
3.1(j).” 38 C.F.R.
§ 3.50(a) (2014).2
“Marriage” means a marriage valid “under 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); 38 C.F.R. § 3.1(j) (2014).
Further, as relevant here, Mrs.
Johnstone is eligible to receive dependencyand indemnitycompensation
benefits if she was married
to Mr. Johnstone for one year prior to his death. 38 C.F.R. § 3.54(a)(1).
There is no dispute that Mr. and Mrs. Johnstone were not legally married for one year prior to his death. There is also no dispute that the state of New York does not recognize common law marriages. See N.Y. Dom. Rel. § 11. As the Board pointed out, however, [a] legal impediment to a valid marriage may be overcome, and the marriage “deemed valid,” on a showing that the appellant was in fact unaware of the impediment, the attempted marriage took place at least one year prior to the Veteran’s death, they cohabitated continually from the attempted marriage to the Veteran’s death, and no other person has been established as a surviving spouse.R. at 6 (citing 38 C.F.R. § 3.52). In other words, Mrs. Johnstone could demonstrate entitlement to dependency and indemnity compensation benefits if she could show that she was unaware at the time she attempted to enter into a common law marriage with Mr. Johnstone that New York does not recognize common law marriage.
The Board acknowledged that Mr. and Mrs. Johnstone “lived together in a committed relationship for approximately 27 years prior to his death,” that she was his “health care proxy and devoted a considerable amount of time and energy caring for [him] prior to his death,” and that she

1
As the Secretary explained in his brief, In light of United States v. Windsor, No. 12-307, 133 S.Ct. 2675 (June 26,  2013), and as noted in the Secretary’s pleadings filed in Cardona v. Shinseki, Docket No. 11-3083,
the Secretary will no longer enforce 38 U.S.C. §§ 101(3) [or] 101(31) to the extent that they limit the provision of Veterans’ benefits to married couples of the opposite sex, and to the extent that these provisions preclude
recognition of legally valid marriages of same-sex couples, provided, if applicable, that those marriages meet the requirements of 38 U.S.C. § 103(c).Secretary’s Brief at 5 n.2.
2
See supra note 1.
3

reported that both VA and non-VA medical providers recognized her as Mr. Johnstone’s “significant
other.” R. at 5. The Board also acknowledged the numerous statements from friends and family
regarding Mr. and Mrs. Johnstone’s relationship. Nevertheless, the Board determined that “[i]t is
undisputed that both [Mrs. Johnstone] and all who knew her were well aware that the relationship
between [her] and [Mr. Johnstone] did not meet the definition of “marriage” in New York State prior
to December 12, 2007.” R. at 8.
On appeal, Mrs. Johnstone does not allege that she was unaware of the unavailability of common law marriage in New York. She simply argues that she and Mr. Johnstone lived together as husband and wife for nearly three decades and that other people recognized her as his wife. The Court is sympathetic to Mrs. Johnstone’s plight and is grateful for the dedicated care she provided to the disabled veteran at the end of his life. Nevertheless, this issue turns not on equity, but on the law. Mrs. Johnstone has not demonstrated that she meets any of the requirements of a surviving spouse for the purpose of entitlement to dependency and indemnity compensation benefits.
Accordingly, the Court concludes that the Board’s determination is not clearly erroneous. See 38 U.S.C. § 7261(a)(4).

III. CONCLUSION
Upon consideration of the foregoing, the April 2, 2013, Board decision is
AFFIRMED.
DATED: September 3, 2014
Copies to:
Jeanne Marie Johnstone
VA General Counsel (027)
4

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