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 Wash-
BURDEN 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 inten5 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 mar8 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 wellestablished 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