The Veterans Survivor Benefits Scheme, the Unlawful Marriage and CUE

The facts are these: The now-deceased Elmer Lewis was in the active-duty military from April 1951 to April 1954 and from September 1962 to September 1973. In August 1973, he applied for Veterans Administration (VA) benefits, stating on his application that he had once had a wife named Waltsie A. Cotton, whom he married on Oct. 3, 1953, in a North Carolina ceremony. Elmer submitted a second application for VA benefits in November 1973; this time he stated that he was married to his current wife, Geraldine Lewis, and that she was the only wife he had ever had.

In January 1974, Elmer was retired from the military because of medical disability. In the letter notifying him of this decision, the VA regional officer informed Elmer that in order to establish that Geraldine was his wife, Elmer would have to submit evidence of divorce from Waltsie A. Cotton. In reply, Elmer stated that he had had one prior marriage, but that he now only had one wife — Geraldine. The regional officer continued to try to get proof of divorce from Elmer, prompting him to file a Declaration of Marital Status in March 1975, naming Geraldine as his wife. With it, he submitted a statement claiming he had lived with Waltsie A. Cotton from 1954 to 1958 in New York and New Jersey, but that they had never formally married. He also expressed his belief that those states did not recognize common law marriage.

Elmer died in March 1982. In accordance with 38 U.S.C. § 1310, which permits Dependency and Indemnity Compensation (DIC) benefits to go a “surviving spouse” if a veteran died from a service-connected or compensable disability, Geraldine applied for and was granted DIC benefits. In order to do this, the VA determined that: 1) Geraldine was validly married to veteran Elmer at the time of his death; 2) Geraldine lived with Elmer continuously from the date of marriage to the date of his death (though this requirement would have been waived if she had been separated from Elmer because of his misconduct alone); and 3) Geraldine had not remarried or lived with another man while holding herself out to be married to such man. 38 U.S.C. § 101(3); see 38 C.F.R. § 3.50(b) (2016); see also 38 C.F.R. § 3.54(c) (2016).

However, in June 1982, Waltsie A. Cotton filed her own application for DIC benefits, stating that she was Elmer's widow and that they had remained married despite the fact that Elmer had abandoned her and the couple's twin sons in January 1961. Based on this information, the VA regional officer notified Geraldine of Waltsie's claim, and reduced Geraldine's DIC benefits. In August 1982, Geraldine informed the VA that she had been unaware of Elmer's prior marriage. Soon afterward, the VA determined that Waltsie was Elmer's true widow and cut off Geraldine's DIC benefits completely. Geraldine did not appeal that decision, so it became final.

In January 1983, however, Geraldine came back to dispute Waltsie's claim, requesting a copy of Elmer and Waltsie's marriage certificate, which the regional officer provided to her. It showed that Elmer and Waltsie were married in North Carolina in November 1953. Waltsie was awarded DIC benefits based on her status as Elmer's surviving spouse in January 1983.

Geraldine responded to these goings-on by seeking help from the President of the United States. Her letter to the President was forwarded to the VA regional officer, who again informed Geraldine that unless she could provide a record of Waltsie and Elmer's divorce, she was not entitled to receive DIC benefits as his surviving spouse.

Thirteen years later, in 1999, Geraldine tried to have the case reopened, but the regional officer once more denied her pleas, telling her that without proof of Elmer and Waltsie's divorce, nothing more could be done. And that, it might seem to most observers, should have put an end to Geraldine's claims.

A Special Case?

In March 2011, Geraldine — ever determined — returned once more to the Department of Veterans Affairs, filing a VA Form 21-4138 in which she averred that her benefits had been terminated in error and that she wanted her back-benefits from 1983 onward. Again, the regional officer denied her claim and reiterated that, without a record of divorce, the determination that Waltsie was Elmer's widow for the purposes of DIC benefits must stand. Geraldine appealed and, on Aug. 4, 2015, was once again rebuffed, this time by the Board of Veterans' Appeals (the Board).

But Geraldine wasn't done. She took the case to the Court of Appeals for Veterans Claims, asking for reversal of the decision to deny her benefits. Her argument was that the regional officer and the Board made a clear and unmistakable error (CUE) when they failed to take into account 38 C.F.R. § 3.52 (2016), which lays out an exception in the VA regulations to the requirement that spousal survivor benefits be paid only to legally married claimants. Section 3.52 says that even an attempted marriage that is not valid because of a legal impediment will be deemed valid by the VA if:

(a) The marriage occurred 1 year or more before the veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage (see § 3.54(d)), and

(b) The claimant entered into the marriage without knowledge of the impediment, and

(c) The claimant cohabited with the veteran continuously from the date of marriage to the date of his or her death as outlined in § 3.53, and

(d) No 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.

The Significance of a Clear and Unmistakable Error (CUE)

In general, a final VA decision, including one denying spousal survivor support, may not be reversed or even partly changed. But if CUE is shown, the decision may be reversed or revised. 38 U.S.C. 38 U.S.C. §§ 5109A, 7111. So what is a CUE?

CUE is defined in 38 C.F.R. § 20.1403(a), as follows:

Clear and unmistakable error [CUE] is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.

According to the court in our case, “CUE is established when the following conditions have been met: (1) Either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the alleged error is 'undebatable,' not merely a 'disagreement as to how the facts were weighed or evaluated'; and (3) the error 'manifestly changed the outcome' of the prior decision. Russell v. Principi, 3 Vet.App. 310, 313-14, 319 (1992) (en banc); see Damrel v. Brown, 6 Vet.App. 242, 245 (1994); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999).” CUE specifically does not include a disagreement concerning the way the facts were weighed. 38 C.F.R. sections 20.1403(d).

A CUE claim may be made at any time after a final decision, even decades later, because there is no statute of limitations. However, it is important to note that the Court of Appeals for Veterans Claims cannot consider a CUE claim in the first instance; the claim of CUE first must have been the subject of a final decision below in order for the court to have jurisdiction. 38 U.S.C. § 7252(a).

The Court's Analysis

The government argued that Geraldine, having failed to allege CUE in any of her previous arguments, should now be turned away from the court because the Court of Appeals for Veterans Claims lacks jurisdiction over CUE claims raised for the first time on appeal. The court, citing Barringer v. Peake, 22 Vet.App. 242, 244 (2008), pointed out, however, that it does have jurisdiction to determine whether an issue was reasonably raised by the record. This could include the question of whether Geraldine had raised the issue of CUE in proceedings, even though she didn't call it by that name. Stated the court, “Although CUE claims must be pled with specificity, the requirement to sympathetically read the pleadings of a pro se claimant applies to pleadings that might constitute a request for revision based on CUE. See Bowen v. Shinseki, 25 Vet.App. 250, 255 (2012); see also Acciola v. Peake, 22 Vet.App. 320, 326 (2008) ('[A] sympathetic reading of a CUE motion can fill in details where the theory is not fully fleshed out, but it cannot supply a theory that is absent.').”

Geraldine had indeed not used the term “clear and unmistakable error” or cited its acronym “CUE,” but the court found the import of her filings had raised the issue of CUE, particularly the March 2011 letter Geraldine wrote to the VA, in which she argued that the VA's termination of her DIC benefits was done in error, and stated that she was seeking reinstatement of those benefits and payment of all the back-benefits she had been deprived of. The regional officer had interpreted this letter as a dispute concerning the VA's determination that she was not Elmer's surviving spouse and answered it accordingly. Instead, said the court, the regional officer “should have adjudicated her claim as a motion for revision of the December 1982 RO [regional officer] decision on the basis of CUE.”

This left the court with a problem: It lacks jurisdiction to decide, in the first instance, whether a claim for CUE has been made, and whether CUE exists. 38 U.S.C. § 7252(a). Those are questions that must first be addressed in administrative proceedings and only then can the Court of Appeals for Veterans Claims tackle the issue. The court simply was not in a position to be able to reverse the Board's decision, as Geraldine had asked it to do — not even when, as Geraldine pointed out, the case had gone on for so long, and she was fast growing old. Thus, the case was remanded so that the Board could consider whether Geraldine had reasonably raised the issue of CUE, and, if she had, whether it was error for the VA to have disqualified her from receiving DIC benefits based on her attempted marriage to Elmer.

Conclusion

The VA's clear and unmistakable error standard, an exception to the standard rule of finality that accompanies most disputed matters in the law, is an odd concept to grasp. Not many decisions can be revisited years, or even decades, after the fact. The CUE motion gives a rare power to those claimants who can actually show that it occurred, but they will get only one chance — once a Board's decision on a CUE motion has been made and appealed to a court of competent jurisdiction, there can be no further appeal, even if further CUE-motion worthy bases are discovered. 38 C.F.R. § 20.1400(b) (2016). CUE is one-time deal. So it will be crucial for Geraldine Lewis to make any and all available arguments when presenting her case to the Board on remand.

Was Geraldine Lewis deprived of survivor benefits in an erroneous decision that rises to the level of CUE? Attempted but legally invalid marriages don't usually offer the parties any marriage rights or protections, but, as we have seen, military survivor benefits can be the exception. The fourth element of 38 C.F.R. § 3.52's attempted marriage exception — that no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits — might get in the way in this case, unless the timing issue is decided in Geraldine's favor. After all, she was awarded benefits, and was receiving them, prior to Waltsie A. Cotton's application for survivor benefits, so no competing claim had been filed at the time that she applied for and was awarded benefits. If Geraldine Lewis is successful on remand, she is looking at recouping 25+ years of survivor benefits.

*****
Janice G. Inman is Editor-in-Chief of The Matrimonial Strategist.

The validity of most marriages is rarely challenged. We know when the marriage took place, as evidenced by official papers, and we know just as well when it ended … if it did. In those unusual situations in which an attempted marriage is not legal, there isn't much anyone can do about it. Either a marriage is valid or it's not. Period.

The case of Lewis v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 478 (3/30/17), heard by the U.S. Court of Appeals for Veterans Claims, shows us one instance in which an attempted but not legal marriage just might have a chance to be recognized, at least for the purposes of determining government benefits. The case was brought by Geraldine Lewis against David J. Shulkin in his capacity as Secretary of Veterans Affairs, after she was denied survivor benefits following the death of her formerly active-duty military husband (assumed). To get a different outcome, Geraldine Lewis will need to surmount one giant hurdle: She will need to show clear and unmistakable error (CUE) in the denial of her claim.

An Unwelcome Surprise

The facts are these: The now-deceased Elmer Lewis was in the active-duty military from April 1951 to April 1954 and from September 1962 to September 1973. In August 1973, he applied for Veterans Administration (VA) benefits, stating on his application that he had once had a wife named Waltsie A. Cotton, whom he married on Oct. 3, 1953, in a North Carolina ceremony. Elmer submitted a second application for VA benefits in November 1973; this time he stated that he was married to his current wife, Geraldine Lewis, and that she was the only wife he had ever had.

In January 1974, Elmer was retired from the military because of medical disability. In the letter notifying him of this decision, the VA regional officer informed Elmer that in order to establish that Geraldine was his wife, Elmer would have to submit evidence of divorce from Waltsie A. Cotton. In reply, Elmer stated that he had had one prior marriage, but that he now only had one wife — Geraldine. The regional officer continued to try to get proof of divorce from Elmer, prompting him to file a Declaration of Marital Status in March 1975, naming Geraldine as his wife. With it, he submitted a statement claiming he had lived with Waltsie A. Cotton from 1954 to 1958 in New York and New Jersey, but that they had never formally married. He also expressed his belief that those states did not recognize common law marriage.

Elmer died in March 1982. In accordance with 38 U.S.C. § 1310, which permits Dependency and Indemnity Compensation (DIC) benefits to go a “surviving spouse” if a veteran died from a service-connected or compensable disability, Geraldine applied for and was granted DIC benefits. In order to do this, the VA determined that: 1) Geraldine was validly married to veteran Elmer at the time of his death; 2) Geraldine lived with Elmer continuously from the date of marriage to the date of his death (though this requirement would have been waived if she had been separated from Elmer because of his misconduct alone); and 3) Geraldine had not remarried or lived with another man while holding herself out to be married to such man. 38 U.S.C. § 101(3); see 38 C.F.R. § 3.50(b) (2016); see also 38 C.F.R. § 3.54(c) (2016).

However, in June 1982, Waltsie A. Cotton filed her own application for DIC benefits, stating that she was Elmer's widow and that they had remained married despite the fact that Elmer had abandoned her and the couple's twin sons in January 1961. Based on this information, the VA regional officer notified Geraldine of Waltsie's claim, and reduced Geraldine's DIC benefits. In August 1982, Geraldine informed the VA that she had been unaware of Elmer's prior marriage. Soon afterward, the VA determined that Waltsie was Elmer's true widow and cut off Geraldine's DIC benefits completely. Geraldine did not appeal that decision, so it became final.

In January 1983, however, Geraldine came back to dispute Waltsie's claim, requesting a copy of Elmer and Waltsie's marriage certificate, which the regional officer provided to her. It showed that Elmer and Waltsie were married in North Carolina in November 1953. Waltsie was awarded DIC benefits based on her status as Elmer's surviving spouse in January 1983.

Geraldine responded to these goings-on by seeking help from the President of the United States. Her letter to the President was forwarded to the VA regional officer, who again informed Geraldine that unless she could provide a record of Waltsie and Elmer's divorce, she was not entitled to receive DIC benefits as his surviving spouse.

Thirteen years later, in 1999, Geraldine tried to have the case reopened, but the regional officer once more denied her pleas, telling her that without proof of Elmer and Waltsie's divorce, nothing more could be done. And that, it might seem to most observers, should have put an end to Geraldine's claims.

A Special Case?

In March 2011, Geraldine — ever determined — returned once more to the Department of Veterans Affairs, filing a VA Form 21-4138 in which she averred that her benefits had been terminated in error and that she wanted her back-benefits from 1983 onward. Again, the regional officer denied her claim and reiterated that, without a record of divorce, the determination that Waltsie was Elmer's widow for the purposes of DIC benefits must stand. Geraldine appealed and, on Aug. 4, 2015, was once again rebuffed, this time by the Board of Veterans' Appeals (the Board).

But Geraldine wasn't done. She took the case to the Court of Appeals for Veterans Claims, asking for reversal of the decision to deny her benefits. Her argument was that the regional officer and the Board made a clear and unmistakable error (CUE) when they failed to take into account 38 C.F.R. § 3.52 (2016), which lays out an exception in the VA regulations to the requirement that spousal survivor benefits be paid only to legally married claimants. Section 3.52 says that even an attempted marriage that is not valid because of a legal impediment will be deemed valid by the VA if:

(a) The marriage occurred 1 year or more before the veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage (see § 3.54(d)), and

(b) The claimant entered into the marriage without knowledge of the impediment, and

(c) The claimant cohabited with the veteran continuously from the date of marriage to the date of his or her death as outlined in § 3.53, and

(d) No 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.

The Significance of a Clear and Unmistakable Error (CUE)

In general, a final VA decision, including one denying spousal survivor support, may not be reversed or even partly changed. But if CUE is shown, the decision may be reversed or revised. 38 U.S.C. 38 U.S.C. §§ 5109A, 7111. So what is a CUE?

CUE is defined in 38 C.F.R. § 20.1403(a), as follows:

Clear and unmistakable error [CUE] is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.

According to the court in our case, “CUE is established when the following conditions have been met: (1) Either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the alleged error is 'undebatable,' not merely a 'disagreement as to how the facts were weighed or evaluated'; and (3) the error 'manifestly changed the outcome' of the prior decision. Russell v. Principi , 3 Vet.App. 310, 313-14, 319 (1992) (en banc); see Damrel v. Brown , 6 Vet.App. 242, 245 (1994); see also Bustos v. West , 179 F.3d 1378, 1380-81 (Fed. Cir. 1999).” CUE specifically does not include a disagreement concerning the way the facts were weighed. 38 C.F.R. sections 20.1403(d).

A CUE claim may be made at any time after a final decision, even decades later, because there is no statute of limitations. However, it is important to note that the Court of Appeals for Veterans Claims cannot consider a CUE claim in the first instance; the claim of CUE first must have been the subject of a final decision below in order for the court to have jurisdiction. 38 U.S.C. § 7252(a).

The Court's Analysis

The government argued that Geraldine, having failed to allege CUE in any of her previous arguments, should now be turned away from the court because the Court of Appeals for Veterans Claims lacks jurisdiction over CUE claims raised for the first time on appeal. The court, citing Barringer v. Peake , 22 Vet.App. 242, 244 (2008), pointed out, however, that it does have jurisdiction to determine whether an issue was reasonably raised by the record. This could include the question of whether Geraldine had raised the issue of CUE in proceedings, even though she didn't call it by that name. Stated the court, “Although CUE claims must be pled with specificity, the requirement to sympathetically read the pleadings of a pro se claimant applies to pleadings that might constitute a request for revision based on CUE. S ee Bowen v. Shinseki , 25 Vet.App. 250, 255 (2012); see also Acciola v. Peake , 22 Vet.App. 320, 326 (2008) ('[A] sympathetic reading of a CUE motion can fill in details where the theory is not fully fleshed out, but it cannot supply a theory that is absent.').”

Geraldine had indeed not used the term “clear and unmistakable error” or cited its acronym “CUE,” but the court found the import of her filings had raised the issue of CUE, particularly the March 2011 letter Geraldine wrote to the VA, in which she argued that the VA's termination of her DIC benefits was done in error, and stated that she was seeking reinstatement of those benefits and payment of all the back-benefits she had been deprived of. The regional officer had interpreted this letter as a dispute concerning the VA's determination that she was not Elmer's surviving spouse and answered it accordingly. Instead, said the court, the regional officer “should have adjudicated her claim as a motion for revision of the December 1982 RO [regional officer] decision on the basis of CUE.”

This left the court with a problem: It lacks jurisdiction to decide, in the first instance, whether a claim for CUE has been made, and whether CUE exists. 38 U.S.C. § 7252(a). Those are questions that must first be addressed in administrative proceedings and only then can the Court of Appeals for Veterans Claims tackle the issue. The court simply was not in a position to be able to reverse the Board's decision, as Geraldine had asked it to do — not even when, as Geraldine pointed out, the case had gone on for so long, and she was fast growing old. Thus, the case was remanded so that the Board could consider whether Geraldine had reasonably raised the issue of CUE, and, if she had, whether it was error for the VA to have disqualified her from receiving DIC benefits based on her attempted marriage to Elmer.

Conclusion

The VA's clear and unmistakable error standard, an exception to the standard rule of finality that accompanies most disputed matters in the law, is an odd concept to grasp. Not many decisions can be revisited years, or even decades, after the fact. The CUE motion gives a rare power to those claimants who can actually show that it occurred, but they will get only one chance — once a Board's decision on a CUE motion has been made and appealed to a court of competent jurisdiction, there can be no further appeal, even if further CUE-motion worthy bases are discovered. 38 C.F.R. § 20.1400(b) (2016). CUE is one-time deal. So it will be crucial for Geraldine Lewis to make any and all available arguments when presenting her case to the Board on remand.

Was Geraldine Lewis deprived of survivor benefits in an erroneous decision that rises to the level of CUE? Attempted but legally invalid marriages don't usually offer the parties any marriage rights or protections, but, as we have seen, military survivor benefits can be the exception. The fourth element of 38 C.F.R. § 3.52's attempted marriage exception — that no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits — might get in the way in this case, unless the timing issue is decided in Geraldine's favor. After all, she was awarded benefits, and was receiving them, prior to Waltsie A. Cotton's application for survivor benefits, so no competing claim had been filed at the time that she applied for and was awarded benefits. If Geraldine Lewis is successful on remand, she is looking at recouping 25+ years of survivor benefits.

*****
Janice G. Inman is Editor-in-Chief of The Matrimonial Strategist.