UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 09-3233

MICHELE D. BURDEN, APPELLANT,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued October 26, 2011 Decided February 1, 2012)

Angela J. Hill, of Alexander City, Alabama, for the appellant.

Karen Hartridge, with whom Will A. Gunn, General Counsel; R. Randall Campbell,

Assistant General Counsel; and Carolyn F. Washington, Deputy Assistant General Counsel, were

on the brief, all from Washington, D.C., for the appellee. 

Before KASOLD, Chief Judge, and HAGEL and LANCE, Judges.

KASOLD, Chief Judge: Mrs. Michele D. Burden is the surviving spouse of Vietnam veteran

Louis E. Burden. She appeals through counsel an August 11, 2009, decision of the Board of

Veterans' Appeals (Board) that denied dependancy and indemnity compensation (DIC) because she

was not Mr. Burden's surviving spouse for at least one year prior to Mr. Burden's death. See 38

U.S.C. §§ 1102, 1304, 1541(f) (establishing requirements for the receipt of surviving spouse

benefits). Mrs. Burden argues that the Board erred (1) by applying Alabama's "clear and convincing

proof" requirement for establishing a common law marriage instead of giving her the "benefit of the

doubt" on that material issue pursuant to 38 U.S.C. § 5107 (b) ; (2) in finding that she was not 1

Section 5107(b), title 38, U.S. Code, states: "Benefit of the doubt. – The Secretary shall consider all 1

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."
married at least one year prior to her husband's death, regardless of the standard of proof; and (3) by

providing an inadequate statement of reasons or bases in support of its decision. She also argues that

the Board erred in finding the duty to notify satisfied. The Secretary disputes Mrs. Burden's

arguments. 

For the reasons set forth below, we hold that the Board was required by law to apply

Alabama's "clear and convincing proof" requirement instead of giving her the "benefit of the doubt"

pursuant to 38 U.S.C. § 5107(b) when assessing whether Mr. and Mrs. Burden entered into a

common law marriage under Alabama law, and we furtherfind that Mrs. Burden fails to demonstrate

that the Board otherwise erred in denying her DIC. Accordingly, the Board's decision will be

affirmed. 

I. BACKGROUND

Mr. Burden had active service from January 21, 1948, to October 31, 1968. He married Mrs.

Burden in a ceremonial marriage on April 27, 2004, two months before his death. On

August 24, 2004, Mrs. Burden applied for DIC as Mr. Burden's surviving spouse; that claim was

denied on October 1, 2004, by the Mobile, Alabama, regional office (RO). The RO determined that

Mrs. Burden was not entitled to benefits because she was not married to Mr. Burden for at least one

year prior to his death, as required by statute and VA regulation. See 38 U.S.C. § 1102 (denying

DIC to a surviving spouse unless, inter alia, the surviving spouse was married to a veteran for one

year or more at the time of the veteran's death); 38 C.F.R. § 3.54 (2011) (same). In response to the

RO's determination, Mrs. Burden submitted a "Statement of Marital Relationship" and supporting

lay statements to the effect that she and Mr. Burden had a common law marriage for over five years

prior to his death. The RO continued its denial of her claim, finding that under Alabama law a

common law marriage did not exist between Mr. and Mrs. Burden prior to their ceremonial marriage. 

The Board affirmed. 

The Board determinated that Mr. and Mrs. Burden were residents of Alabama during the

entire period that Mrs. Burden asserted she and her husband had entered into a common law

marriage. Accordingly, the Board looked to Alabama law to determine whether the Burdens had

entered into a common law marriage. 38 U.S.C. § 103(c) (requiring validity of marriage to be

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determined according to State law). The Board noted that under Alabama law, a party attempting 2

to demonstrate a common law marriage has to establish four elements: "(1) [C]apacity (both spouses

must be at least 14 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)

cohabitiation or mutual assumption openly of marital duties and obligations." R. at 8 (citing Creel

v. Creel, 763 So. 2d 943, 946 (Ala. 2000); Adams v. Boan, 559 So. 2d 1084, 1086 (Ala. 1990)). The

Board further noted that under Alabama law "clear and convincing proof" is required to establish a

common law marriage. R. at 8 (citing Goodman v. McMillan, 61 So.2d 55, 59 (Ala. 1952)). The

Board ultimately concluded that the evidence did not establish by "clear and convincing proof" that

Mr. and Mrs. Burden were married under the common law of Alabama, and therefore the Board

found that Mrs. Burden was not entitled to DIC.

II. THE PARTIES' ARGUMENTS

Mrs. Burden argues that the Board erred in applying the Alabama "clear and convincing

proof" requirement for establishing a common law marriage when it determined that she and Mr.

Burden were not married under the common law of Alabama. In support of this argument, she

contends that when weighing the facts with regard to this material issue the Board should have

applied the "benefit of the doubt" standard of proof provided in 38 U.S.C. § 5107(b). In essence, she

argues that the Federal evidence standard trumps the State standard, and further argues that holding

otherwise makes section 5107(b) obsolete. 

In response to questioning by the Court, Mrs. Burden essentially argued that while 38 U.S.C.

§ 103(c) instructs the Secretary and the Board to look to State law to determine whether there is a

common law marriage, this directive applies only to the State substantive law and not to State

procedural law, which is similar, as the Court noted, to the application of State law in diversity cases

 38 U.S.C. § 103 (c) states: "In determining whether or not a person is or was the spouse of a veteran, their 2

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 right to benefits accrued."

Although not an issue in this case, there is one exception: 38 U.S.C. § 101 (3) provides a Federal definition of "surviving

spouse" for purposes of title 38 as, inter alia, "a person of the opposite sex who was a spouse of the veteran at the time

of the veteran's death." See also 38 U.S.C. § 101 (31) (2011) (defining "spouse" as "a person of the opposite sex who

is a wife or husband"); 38 C.F.R. § 3.50 (b) (same). 

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under the Erie doctrine. See Section III.A.2.a, infra (explaining the Erie doctrine). More

specifically, she contends that under Alabama law the four elements necessary to prove a valid

common law marriage constitute the substantive State law, but the requirement that the four elements

be demonstrated by "clear and convincing proof" is a procedural rule and therefore not for

application within the context of VA-benefits law. Mrs. Burden notes that the "benefit of the doubt"

doctrine is the touchstone of veterans law and that the U.S. Supreme Court explicitly stated that

unlike the law at issue in traditional civil ligation, all VA regulations should be interpreted in the

claimant's favor. Moreover, she also contends that applying the State standard of proof to the

determination of marriage, as argued by the Secretary, would result in making a claimant's eligibility

to qualify as a surviving spouse and obtain death benefits contingent upon the state where they were

married or where they lived at the time of the veteran's death. 

As noted earlier, Mrs. Burden also argues that regardless of the standard of proof applied, the

Board erred in its finding – and provided an inadequate statement of reasons or bases in support of

its finding – that she and Mr. Burden were not married by common law for at least one year before

Mr. Burden's death. She also argues that the Board failed to ensure she was provided adequate

notice how to substantiate her common law marriage claim, in particular, how to substantiate her

status as a surviving spouse.

In contrast, the Secretary argues in regard to Alabama's "clear and convincing proof"

requirement, that section 103(c)is unambiguous in its instruction that he should look to the state law

to determine whether a valid marriage existed. He characterizes section 103(c) as an exception to

the "benefit of the doubt" doctrine that typically is applied in veterans law cases. Compare 38 U.S.C.

§ 103(c) and 38 C.F.R. § 3.1(j) (2011), with 38 U.S.C. § 5107(b). In response to questioning at oral

argument, the Secretary argued that under the framework of the Erie doctrine, Alabama's "clear and

convincing proof" requirement should be applied to VA determinations of common law marriage

because it is a substantive part of Alabama law. See Section III.A.2.a, infra (explaining the Erie

doctrine).

The Secretary also noted that in enacting section 103(c), Congress clearly recognized that the

qualifications of marriage differ from one State to another and implicitly rejected the concept that

marriage under veterans benefits law should be held to an uniform national standard. He argues that

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Congress was concerned with uniformity within a State, rather than across State lines, when it

enacted section 103(c). Moreover, the Secretary noted that applying the "benefit of the doubt"

doctrine to the legal elements of Alabama common law marriage would result in VA recognizing

invalid marriages that are not recognized by the State or anywhere outside the veterans benefits

context, which is inconsistent with the purposes behind section 103(c). The Secretary further notes

that marriage alone is insufficient to entitle a person to VA benefits, and that the "benefit of the

doubt" doctrine would apply to the other material issues, such as whether a marriage existed for at

least one year, or before the expiration of 15 years after termination of the veteran's service that

caused his death, or whether there was a child born of or before the marriage. See, e.g., 38 U.S.C.

§§ 1102(a), 1304, 1541(f). 

In response to Mrs. Burden's notice argument, the Secretarynotes that Mrs. Burden submitted

her marriage certificate and her husband's death certificate with her original claim for DIC. Because

this is the evidence necessary to substantiate a claim, he argues that no further notice was required. 

Additionally, the Secretary argues that even if Mrs. Burden was not provided adequate notice how

to substantiate her claim, her submission of evidence in support of a common law marriage

demonstrated actual knowledge of the need to prove her marital status in order to qualify for DIC.

III. DISCUSSION

A. Alabama's "clear and convincing proof" requirement

applies to VA determinations of marital status.

1. For VA benefits purposes, marriage generally is defined by state law.

To establish a marriage for VA benefits purposes, the Secretary is required to look to the law

of the place where the marriage took place or where the parties resided at the time the right to VA

benefits accrued. 38 U.S.C. § 103(c); Hopkins v. Nicholson, 19 Vet.App. 165, 169 (2005). At the

outset we note that to the extent Mrs. Burden argues that this requirement is an invalid exercise of

Federal authority over the award of VA benefits because it fosters forum shopping and a lack of

uniformity between States for the purpose of determining whether parties have entered into a valid

marriage, she fails to support any such an argument with legal authority. Moreover, marriage

traditionally has been a state-sanctioned and state-recognized status to which the Federal

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Government attaches consequences. See Kahn v. I.N.S., 36 F.3d 1412 (9th Cir. 1994) ("Marital

status, as defined by state law, plays a particularly prominent role in the administration of federal

law."); see also 8 U.S.C. §§ 1151(b), 1186a(d)(1)(A) (marital status, under State law, is applied in

determining the validity of a marriage between an alien and U.S. citizen under immigration law);

Califano v. Jobst, 434 U.S. 47, 52-53 n.8 (1997) (Social Security benefits often hinge on marital

status, under State law); FED. R. EVID. 501 (marital status – including whether a State recognizes

common law marriage – determines who may claim the marital privileges under the Federal Rules

of Evidence). Thus, in the absence of supporting argument, we find no basis for holding that section

103(c) is an improper exercise of congressional authority over VA benefits simply because it directs

the Secretary to apply State law within a Federal system. See Coker v. Nicholson, 19 Vet.App. 439,

442 (2006) (noting requirement that appellants plead allegations of error with some particularity "so

that the Court is able to review and assess the validity of the appellant's arguments"). 

2. Reconciling Sections 103(c) and 5107(b)

Although section 103(c) is clear in its mandate that marriage generally is governed by local

law, it provides no specific guidance with regard to its interplay with the section 5107(b) that

requires the Secretary to apply the "benefit of the doubt" to all issues material to a determination with

regard to VA benefits. Nevertheless, the simple answer is that the more specific statute governs,

consistent with the cannons of interpretation. See United States v. Estate of Romani, 523 U.S. 517

(1998) (holding that a later, more specific statute trumps an earlier, more general one); Beverly v.

Nicholson, 19 Vet.App. 394, 402 (2005) (acknowledging that general "cannon of interpretation that

the more specific trumps the general"). Here, section 103(c)is specific in its application to marriage,

stating that State law is determinative of marriage, while section 5107(b) is general in its overarching

mandate that the "benefit of the doubt" applies to all material issues in deciding VA benefits claims. 

Moreover, section 103(c) explicitly provides that "in determining whether or not a person is or was

the spouse of a veteran, their marriage shall be proven . . . according to the law of the place where

the parties resided at the time of the marriage." 38 U.S.C. § 103(c) (emphasis added). By using the

phrase "shall be proven . . . according to the law of the place where the parties resided," Congress

specifically addressed the standard of proof that must be applied by the Secretary. Thus, under the

rules of statutory interpretation, section 103(c) provides that the Secretary apply Alabama's

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requirement that a marriage be shown by "clear and convincing proof" and thus section 103(c)

trumps the "benefit of the doubt" standard generally applicable in the processing of a claim for

veterans benefits. 

Recognizing that the easy answer is not always the correct answer, we also find support for

our conclusion from an application of the principles underlying the Erie doctrine, which we find

instructive when assessing the substantive provisions of Alabama's law governing marriages. See

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). 

a. The Erie Doctrine – Substantive Versus Procedural Law 

The Erie doctrine addresses when Federal courts should apply Federal or State law in

diversity cases, and holds generally that they should apply State substantive law and Federal

procedural law. Id. Although, as argued by Mrs. Burden at oral argument, some courts have held

that the standard of proof is a procedural issue, the U.S. Supreme Court has found that the standard

of proof may be a substantive issue in certain contexts. See Gasperini v. Center for Humanities, Inc.,

116 S. Ct. 2211, 2214 (1996). Acknowledging that this is a challenging distinction, the Supreme

Court has expounded upon the Erie doctrine to aid Federal courts in determining whether a law is

substantive or procedural. Guaranty Trust Co. v. York, 326 U.S. 99 (1945). In Guaranty Trust Co.,

the Supreme Court propounded the "outcome-determination test," which asks whether "it

significantly affect[s] the result of a litigation for a federal court to disregard a law of a State that

would be controlling in an action upon the same claim by the same parties in a State court?" Id. at

109. Subsequently, in Byrd v. Blue Ridge Rural Elec. Co-op., Inc., the Supreme Court noted that

when countervailing Federal and State laws are at issue, it is important to weigh the following

considerations: (1) whether the State law is bound up with State-created rights and obligations, (2)

whether there are countervailing considerations that would warrant a Federal rule, and (3) the effect

of the rule in question on an outcome, so as to balance situations presenting countervailing Federal

interests. 356 U.S. 525, 535-40 (1958). And, in Hanna v. Plumer, the Supreme Court later

emphasized that the outcome-determinative test must not be sweepingly applied, but should be

assessed in the context of the "twin aims of the Erie rule: discouragement of forum-shopping and

avoidance of inequitable administration of the laws." 380 U.S. 460, 468 (1965). 

Applying these principles below, we conclude that theAlabama "clear and convincing proof"

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requirement to establish a common law marriage is substantive in nature.

i. The "Outcome-Determination Test" 

Whether or not Mr. and Mrs. Burden were married for a least one year prior to his death for

DIC purposes depends on the evidence standard applied to the question. Under the "benefit of the

doubt" doctrine, the evidence of a common law marriage need only be in equipoise to support a

finding of marriage. Gilbert v. Derwinski, 1 Vet.App. 49, 54 (1990) ("[A] veteran need only

demonstrate that there is an 'approximate balance of positive and negative evidence' in order to

prevail . . . . In other words, . . . the preponderance of the evidence must be against the claim for

benefits to be denied."). In contrast, under Alabama's "clear and convincing proof" requirement, the

evidence of a common law marriage must be greater than the preponderance of the evidence,

although "less than beyond a reasonable doubt." See Cochran v. Chapman __ So. 3d __, __ No.

2100550, 2011 WL 4133010, at *4 (Ala. Civ. App. Sept. 16, 2011) (citing § 6-11-20(b)(4) ALA.

CODE (1975)). Although a higher standard of proof does not necessitate a different finding on the

same set of facts, it certainly can result in a different finding. See Gilbert, 1 Vet. App. at 54 (stating

that the "benefit of the doubt" standard frequently generates an outcome different than that of the

"preponderance of the evidence" standard (with the tie going to the appellant in the former and with

the appellee in the latter)).

Here, the Board applied Alabama's requirement that a common law marriage must be

established by "clear and convincing proof." Accordingly, because we have no finding as to whether

a common law marriage might be established under the "benefit of the doubt" doctrine, for purposes

of further analysis we presume that the result would have been different had the Board applied the

"benefit of the doubt" standard when determining whether Mr. and Mrs. Burden were married under

common law.

ii. The Byrd Considerations 

There is no doubt that the Alabama "clear and convincing proof" requirement is bound up

with state-created rights and obligations. Indeed, Alabama courts closely scrutinize a claim of

common law marriage under this heightened proof requirement because of "the serious nature of the

marriage relationship." Etheridge v. Yeager, 465 So. 2d 378, 379 (Ala. 1985); see also Goodman,

supra. On the other hand, there is no doubt that the Federal Government has been granted primary

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control and responsibility over the distribution of veterans benefits and maintains a significant

interest in caring for veterans and their families. See Ribaudo v. Nicholson, 21 Vet.App. 137, 163

(2007) (en banc) (stating that the VA motto reflects a core value of our Nation, which is "'[t]o care

for him who shall have bourne the battle for his widow, and his orphan'" (quoting President

Abraham Lincoln)); see also Gilbert, 1 Vet.App. at 54 ("It is in recognition of our debt to our

veterans that society has through legislation taken upon itself the risk of error when, in determining

whether a veteran is entitled to benefits, there is an 'approximate balance of positive and negative

evidence.' By tradition and by statute, the benefit of the doubt belongs to the veteran."). And, as

noted above, the application of one standard of proof over the other can be outcome determinative,

fostering either the State interest or the Federal interest. Unlike typical conflicts between State and

Federal interests, the conflict of State and Federal provisions here arises only as a result of two

Federal statutes; specifically, section 103(c), which implicates State law, and section 5107(b), which

provides an overarching Federal standard of proof. Given this basis for conflict, the fact that

Congress explicitly required marital determinations for DIC to be based on State law weighs in favor

of that specific interest, which is discussed further below.

iii. The Twin Aims of the Erie Doctrine

The first aim of the Erie Doctrine is to discourage forum shopping. Here, the very scope of

section 103(c)reflects that Congress, in the face of well-established variations in State law regarding

marriage, did not intend to create a nationalized standard for marriage for veterans benefits purposes. 

Compare Piel v. Brown, 361 So. 2d 90 (Ala. 1978) (Alabama common law marriage is established

by (1) capacity, (2) a present agreement or mutual consent, (3) public recognition, and (4)

cohabitiation or mutual assumption of marital duties), with Johnson v. Johnson, 235 S.C. 542 (S.C.

1960) (South Carolina common law marriage is established if the parties intended others to believe

they were married), and 23 PA. CONS. STAT § 1103 (Pennsylvania common law marriage is

established if, before 2005, the parties exchanged words indicating a present intent to be married),

and In re Marriage of Swanner-Renner, 351 Mont. 62, 65 (2009) (In Montana "there is a rebuttable

presumption that a man and woman 'deporting themselves as husband and wife have entered into a

lawful contract of marriage'" (quoting MON. CODE ANN. § 26-1-602(30)). 

Rather, the specificity of section 103(c) in directing the Secretary to apply State law when

9
determining marital status reflects congressional intent to discourage forum shopping between State

and the Federal statutes and regulations that govern veterans benefits, not between individual States. 

With one exception regarding what constitutes a spouse and surviving spouse, Congress explicitly 3

defers to State law for determinations of marital status for VA purposes. As the Secretary noted at

oral argument, if a Federal standard of proof is superimposed on the State law, there might be forum

shopping between a State court and VA tribunals with regard to whether parties are married. A

veteran or a surviving spouse from a common law State with a heightened evidence requirement,

such as Alabama, might verywell apply directly for VA benefits that are dependent on marital status,

without first proving marriage under the State law. Under the "benefit of the doubt" standard, a

veteran could be deemed married for VA purposes, and yet not married under State law, which

would conflict with an obvious purpose behind section 103(c). Discouraging forum shopping

between a State court and VA tribunal – one of the twin aims behind the Erie doctrine – is furthered

in this instance by applying the Alabama "clear and convincing proof" requirement in determining

whether Mr. and Mrs. Burden were married under the common law of Alabama.

The second aim of the Erie doctrine is to discourage the inequitable administration of laws. 

The same observations noted above are applicable here. Thus, while the equitable administration

of conflicting State marriage laws is not of concern to Congress, as reflected by congressional

directive to apply State law to VA marriage determinations, that same directive evinces

congressional concern about the equitable administration of laws between adjudications in a

particular State and VA adjudications involving residents from that same State. Thus, in this case,

the equitable administration of Alabama marital law is fostered by VA application of Alabama's

"clear and convincing proof" requirement that governs common law marriages in Alabama.

b. Section 5107(b) is not rendered obsolete.

ContrarytoMrs.Burden's argument, applying Alabama's heightened proof requirementwhen

determining whether a claimant was married under Alabama law does not render section 5107(b)

obsolete. Section 103(c) applies only to the determination of the validity of a marriage under State

The only Federal restriction with regard to VA benefits and marriage for VA purposes is that "spouse" is 3

defined as "a person of the opposite sex who is a wife or husband," which has no bearing in this case. 38 U.S.C. § 102

(31); see also 38 U.S.C. § 101 (3) (defining "surviving spouse" for purposes of title 38 as, inter alia, "a person of the

opposite sex who was a spouse of the veteran at the time of the veteran's death"); 38 C.F.R. § 3.50 (b) (same). 

10
law. As the Secretary notes, once 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. See 38 U.S.C. §§ 1102, 1304, 1541(f). Additionally, section 5107(b) applies to the

individual factual determinations that underpin the Board's ultimate assessment of whether the

evidence rises to the level of "clear and convincing proof." Cf. McLendon v. Nicholson, 20,

Vet.App. 79, 81 (2006) (noting that while the ultimate conclusion that a medical examination is not

necessaryisreviewed under the "arbitrary, capricious" standard of review, the Board's determinations

underlying this conclusion are reviewed under various standards of review); Bagby v. Derwinski, 1

Vet.App. 225, 227 (1991) (noting that although factual determinations underlie a Board

determination whether there is clear and unmistakable evidence to rebut the presumption of

soundness, the determination that the evidence is clear and unmistakable is reviewed de novo); see

also Stringer v. Stringer, 689 So. 2d 194 (Ala. 1997) (noting that although the ultimate determination

of common law marriage must be shown by clear and convincing proof, whether the underlying

elements of a common law marriage exist is a question of fact). 

c. Summary Holding

For the reasons stated above, we hold that the Board did not err in applying Alabama's "clear

and convincing proof" requirement when determining whether Mr. and Mrs. Burden were common

law married under Alabama common law. 

B. The Board's Application of Alabama Law

Mrs. Burden contends that regardless of the evidentiary standard applicable in her case, the

Board nevertheless misapplied the holding in Downs v. Newman, 500 So. 2d 1062 (Ala. 1986), that

some documentary evidence supporting single status does not necessarily defeat a common law

marriage. In Downs, the Alabama Supreme Court reviewed a trial court's determination that a

common law marriage existed based on the totality of the evidence, and found that the trial court was

not palpably wrong in its determination simply because the evidence included some documentation

indicating the parties had stated they were single. Id. Thus, Downs involved deferential review of

the trial court's assessment of the totality of the evidence, and it supports Mrs. Burden's contention

that some documentary evidence supporting single status does not necessarily defeat a common law

11
marriage. On the other hand, such evidence is a factor for the trier of fact to weigh, which implicates

our own standard of review of findings by the Board that evidence does not attain the level of "clear

and convincing proof." 

The Court previously has held that the Board's application of a "clear and convincing proof"

requirement involves the application of law to fact, and is reviewed under the "arbitrary and

capricious" standard of review. Caluza v. Brown, 7 Vet.App. 498, 511 (1995). Although this Caluza

holding involved an interpretation of the "clear and convincing proof" requirement associated with

a veteran's accounts of injury while in combat pursuant to 38 U.S.C. § 1154, we see no basis to

distinguish our review of the Board's finding in this case that the totality of the evidence was not

"clear and convincing" that the Burdens were married under the common law of Alabama. On the

other hand, it is our duty to reverse findings of fact that are demonstrated to be clearly erroneous, and

determinations of marital status are factual in nature. See 38 U.S.C. § 7261 (scope of review);

Dedicatoria v. Brown, 8 Vet.App. 441, 443 (1995) (marriage is a question of fact). Although the

line between each standard of review can become blurred, see Elkins v. West, 12 Vet.App 209, 217-

18 (1999) (discussing standards of review); see also Munn v. Sec'y of DHHS, 970 F.2d 863, 871

(Fed. Cir. 1992) (noting that the difference between the "arbitrary and capricious" standard versus

the "clearly erroneous" standard "is a matter for academic debate"), the "clearly erroneous" standard

applies to questions of fact such as dates of events and inconsistencies found in testimony or record

documents. Butts v. Brown, 5 Vet.App. 532, 534 (1993) (en banc) (Court reviews findings of fact

under the "clearly erroneous" standard of review); cf. McLendon and Bagby, both supra. As to

which standard of review applies to our review of the Board's ultimate finding that a common law

marriage under Alabama law has not been established, we need not decide that now as we hold that

Mrs. Burden fails to demonstrate that the Board's finding that she had not established a common law

marriage under Alabama law is either clearly erroneous or arbitrary and capricious. See Elkins, 12

Vet.App at 217-18 (discussing standards of review); see also Munn, 970 F.2d at 871 (noting that the

difference between the "arbitrary and capricious" standard and the "clearly erroneous" standard "is

a matter for academic debate"); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant

bears burden of demonstrating error on appeal).

Here, the Board did not reject a finding of common law marriage solely on the basis of a few

12
documents reflecting single status. To be sure, the Board found at least 16 times between December

2000 and November 2002 that Mr. Burden asserted he was not married, including an assertion in a

November 2002 application for VA benefits that he was divorced and that his brother was his next

of kin. Additionally, the Board found inconsistencies between Mrs. Burden's assertions that she was

married under common law since 1998, and (1) her application for Social Security benefits wherein

she stated she had lived with Mr. Burden since 2000, (2) Mr. Burden's statement in 1999 that he had

a "girlfriend," (3) a statement from a friend that the Burdens had held themselves out as married

since 1997, and (4) other friends' statements indicating varying years when the Burdens allegedly

began holding themselves out as married. Based on the record on appeal, these findings are plausible

and not clearly erroneous. Gilbert, 1 Vet.App. at 52-53 ("'Where there are two permissible views

of the evidence, the factfinder's choice between them cannot be clearly erroneous.'" (quoting

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985))). 

Moreover, in contrast to Downs, supra, where the appellate court noted, inter alia, the lower

court's finding that the parties occasionally wore wedding bands, and one of the parties obtained life

insurance where the other party was listed as the beneficiary, there is no similar finding in this case,

and Mrs. Burden fails to identify any evidence in the record that might support any such similar

findings. Hilkert, supra. Overall, Mrs. Burden has failed to demonstrate that the Board's application

of Alabama law was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law," 38 U.S.C. § 7261(a)(3)(A); Butts, 5 Vet.App. at 538-40 (holding that the Court reviews

the Board's application of law to facts under the "arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law" standard of proof), or that the Board was clearly erroneous

in finding that Mr. and Mrs. Burden did not establish by "clear and convincing proof" that they were

married under common law prior to their ceremonial marriage, see Prickett v. Nicholson, 20

Vet.App. 370 (2006) (factual determinations reviewed under the "clearly erroneous" standard of

proof); Gilbert, 1 Vet.App. at 52 (1990) ('"A finding is "clearly erroneous" when although there is

evidence to support it, the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed."'(quotingUnited States v. U.S. Gypsum Co., 333 U.S.

364, 395 (1948))); see also Hilkert, 12 Vet.App. at 151 (appellant bears burden of demonstrating

error on appeal).

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C. The Board’s statement of reasons or bases is adequate.

Mrs. Burden also argues that the Board provided an inadequate statement of reasons or bases

for its failure to adequately discuss and weigh the lay evidence in support of a common law marriage

as required by statute and caselaw. 38 U.S.C. § 7104(d)(a); Allday v. Brown, 7 Vet.App. 517, 527

(1995) (Board's statement "must be adequate to enable a claimant to understand the precise basis for

the Board's decision, as well as to facilitate review in this Court").

However, as noted above, the Board discussed Mrs. Burden's statements, and several lay

statements submitted on her behalf, but the Board found them to be inconsistent with regard to when

Mr. and Mrs. Burden may have started cohabitating or presenting themselves as husband and wife. 

Also as noted above, the Board's findings are not clearly erroneous. In the context of the other

evidence reflecting Mr. Burden's repeated representations over time that he was not married, the

Board's view, that the lay statements were inconsistent, and its finding that the evidence of common

law marriage between Mr. and Mrs. Burden was not clear and convincing, is understandable and

facilitative of judicial review. Id.

D. Notice

Mrs. Burden contends that the Board failed to ensure that she was provided adequate notice

pursuant to 38 U.S.C. § 5103(a) how to substantiate her claim, specifically, how to substantiate that

she was married under the common law of Alabama. At the outset, we note that notice under section

5103(a) is general in nature, see Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir.

2009); see also Wilson v. Mansfield, 506 F.3d 1055, 1062 (Fed. Cir. 2007) (stating that notice

pursuant to section 5103(a) "may be generic in the sense that it need not identify evidence specific

to the individual claimant's case (though it necessarily must be tailored to the specific nature of the

veteran's claim)"), and requires the Secretary to address only the evidence needed that was not

previously provided to the Secretary, see Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir.

2006) (stating that the purpose of section 5103(a) is to require the Secretary to "provide affirmative

notification to the claimant prior to the initial decision in the case as to the evidence that is needed

and who shall be responsible for providing it"). Here, as the Secretary notes, Mrs. Burden submitted

her marriage certificate with her claim. There was no reason for the Secretary to believe she had

been married previously, and no basis to provide notice to submit evidence of a common law

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marriage. 

Moreover, the record supports the Secretary's contention that Mrs. Burden 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 below. 

See Mlechick v. Mansfield, 503 F.3d 1340, 1345 (Fed. Cir. 2007) (holding that lack of prejudice from

inadequate notice can be demonstrated by actual knowledge of what was necessary to substantiate

a claim); see also Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (appellant bears the

burden of demonstrating prejudicial error on appeal); Overton v. Nicholson, 20 Vet.App. 427, 435

(2006) (no prejudice if error does not affect the essential fairness of the adjudication); Marciniak v.

Brown, 10 Vet.App. 198, 201 (1997) (remand unnecessary in the absence of demonstrated

prejudice). In sum, Mrs. Burden fails to demonstrate any prejudicial notice error. Hilkert, supra;

see also Shinseki v. Sanders, 129 S. Ct. 1696, 1706 (2009) (appellant bears burden of demonstrating

prejudice on appeal).

IV. CONCLUSION

Upon consideration of the foregoing, the Board's August 11, 2009, decision is AFFIRMED.

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