BVA Case 21-3095: Back

2 The Board found that new and material evidence had been received sufficient to reopen the appellant�s claim.

In April 2003,the Board denied the appellant�s claim for entitlement to recognition as the dependent spouse for VA benefit purposes because she had not submitted clear and convincing evidence of a common law marriage or continuous cohabitation.

In May 2019,the Board found that th e appellant had not submitted new and material evidence sufficient to reopen her claim.

The Board found that the 2014 Alabama Legal Services letter constituted new and material evidence sufficient to reopen the claim,but the Board continued to deny the appellant�s claim because clear and convincing evidence did not support the existence of a common law marriage between her and the veteran.

The Board found that the appellant was required to provide clear and convincing proof of a common law marriage, and the Board considered the arguments that the appellant and the veteran continuously cohabitated subsequent to their divorce .

The Board found that the first element of a common law marriage under Alabama law,capacity,was clearly and convincingly established.

The Board found that the second element, a present agreement or mutual consent to enter into the marriage relationship,permanent and exclusive of all others, was not established by clear and convincing evidence because while the evidence established a relationship between the veteran and the appellant,a marital relationship was not proven,as the evidence showe d that they were not cohabitatingand the veteran did not consider himself in a common law marriage with the appellant.

Accordingly,the Board denied the appellant�s claim for entitlement to recognition as the surviving spouse.