[00:00:00] Speaker 04:
A two zero one six dash twenty three fifty lock versus shulkin Please proceed mr.. Carpenter may please court kind of carpenter appearing on behalf of Dorothy LaFocton The VA by regulation provides for a specific set of legal standards for establishing a deemed valid marriage When there is an impediment or a defect in a valid marriage?

[00:00:27] Speaker 04:
under two provisions of VA regulations at 33.205A and C. In this case, the board reviewed the validity of the marriage only under A6 and did not consider whether or not the marriage was deemed valid under 205C, which requires consideration of whether or not there was proof of a marriage and the requirements of 3.52 were met.

[00:00:57] Speaker 04:
In this case, the Veterans Court believed the Board of its obligation to determine whether or not the remaining requirements for a deemed valid marriage had been met under the provisions of 3.205A1 and 3.205C.

[00:01:12] Speaker 04:
In this case, the Board concluded that there was insufficient proof of a common law marriage under A6

[00:01:25] Speaker 04:
to establish the common law marriage between Mr. Castorio and Ms.

[00:01:31] Speaker 04:
Lafottune.

[00:01:33] Speaker 04:
The provisions of A6 are premised upon the jurisdiction involved, in this case the state of Maine, accepting common law marriage.

[00:01:45] Speaker 04:
The state of Maine, as acknowledged by the board in its decision at page 204 of the appendix,

[00:01:52] Speaker 04:
recognized that common law marriages were not recognized by the state of Maine.

[00:01:57] Speaker 04:
That rendered any attempt to establish the validity of a common law marriage a nullity because she could not meet the requirements under A6 because that jurisdiction did not accept common law marriages.

[00:02:12] Speaker 04:
The board found that Mr. Castorio and Ms.

[00:02:18] Speaker 04:
Lafontune never entered into a valid civil

[00:02:22] Speaker 04:
ceremonial marriage.

[00:02:24] Speaker 04:
That is not the legal standard under 205.

[00:02:28] Speaker 04:
There is in fact no language in the statute or in the regulation that makes reference to a civil or ceremonial marriage.

[00:02:38] Speaker 04:
The question under 205A is whether or not there is proof of a marriage.

[00:02:46] Speaker 04:
205B.

[00:02:48] Speaker 01:
Well, in appendix page 202, the board decision says, the board found that the evidence, cease the reconsideration, the board found that the evidence of record did not establish either a ceremonial marriage or a deemed valid common-law marriage.

[00:03:02] Speaker 04:
That's correct, Your Honor.

[00:03:03] Speaker 04:
And they did that without making an analysis under 205C.

[00:03:09] Speaker 04:
And that issue was specifically raised below

[00:03:12] Speaker 03:
uh... before the veterans court and the veterans court said you tell us what is the evidence for a proof of marriage in this case uh... it's a marriage certificate at page forty five of the record and i understood the board's decision is saying that marriage certificate in its view was not credible under the circumstances and so that is why it concluded that there wasn't

[00:03:40] Speaker 03:
a civil, ceremonial, or common law marriage.

[00:03:43] Speaker 03:
That's correct, Your Honor.

[00:03:44] Speaker 03:
So if the underlying piece of evidence that you're relying on is deemed to be not credible, I don't know why we even need to engage in this debate over the meaning of various portions of the text of the regulation.

[00:04:02] Speaker 04:
Well, because we submit under the proper interpretation of 3.205A

[00:04:08] Speaker 04:
there is no requirement for a credibility assessment as to whether or not there is or is not a certificate.

[00:04:14] Speaker 03:
Okay, so I guess hypothetically, if somebody submitted a forged marriage certificate or a plain on its face defective marriage certificate, the VA under the regulations, under your view, the regulations must accept that.

[00:04:32] Speaker 04:
No, Your Honor, because I think that's a different issue as to whether or not you can establish that this was a forged document.

[00:04:39] Speaker 04:
There was no challenge to whether or not this document did or did not, or excuse me, did not represent what Ms.

[00:04:49] Speaker 04:
La Fartune said was the marriage ceremony that she went through with Mr. Castorio.

[00:04:54] Speaker 03:
Well, let's assume for the moment the board concluded it doubted the veracity of this certificate, that it was actually created back in 2004, that this event that

[00:05:07] Speaker 03:
the certificate attests to actually occurred.

[00:05:11] Speaker 03:
I don't believe that that's... Let's just assume for the moment that that was the board's finding.

[00:05:16] Speaker 03:
Is this case over?

[00:05:18] Speaker 04:
No, Your Honor, because I don't believe that that is a criteria, that that is a legal standard under a 3.205A.

[00:05:27] Speaker 02:
There is no requirement for the board to make that type of... Is your position that once the veteran or the surviving spouse submits evidence that facially complies with one of these criteria, that the VA is not entitled to weigh whether it's true or not?

[00:05:48] Speaker 04:
Correct.

[00:05:50] Speaker 04:
All that is required is an offer approved.

[00:05:54] Speaker 04:
This particular section of the regulation is entitled proof of marriage.

[00:06:00] Speaker 02:
The claimant comes forward and offers her reason for... So your answer to Judge Chen's hypothetical is, yes, even if the person completely fraudulently forges a marriage certificate, if on its face it looks credible, the VA can't go behind that.

[00:06:18] Speaker 02:
Yes.

[00:06:19] Speaker 01:
And one of the problems is, even if all of that is true, and that would really be quite a stretch, but even if that were correct, you don't actually comply.

[00:06:33] Speaker 01:
Your client did not comply with any of 205A's express provisions.

[00:06:39] Speaker 01:
Instead, now you want to mush them all together and do some sort of totality.

[00:06:43] Speaker 01:
Well, we got half of this one and part of that one.

[00:06:45] Speaker 01:
We got a letter from the clergyman, but not an affidavit.

[00:06:48] Speaker 01:
We have a marriage certificate, but it doesn't say the place of the marriage like the regulation requires.

[00:06:55] Speaker 01:
You have all of these.

[00:06:57] Speaker 01:
You have half of this and a quarter of that, and you want to mush them together.

[00:07:00] Speaker 01:
So you don't actually comply, do you, with any of 3.205A's precise sections?

[00:07:07] Speaker 04:
With respect, Your Honor, I believe

[00:07:08] Speaker 04:
The evidence does show that.

[00:07:11] Speaker 04:
What is required under... Which evidence shows?

[00:07:12] Speaker 01:
Which section do you think you comply with?

[00:07:15] Speaker 04:
A1.

[00:07:15] Speaker 01:
Which says that the copy of the record, the church record, must articulate the date and place of marriage.

[00:07:22] Speaker 01:
And you've admitted that it does not acknowledge the place of marriage on the certificate anywhere.

[00:07:27] Speaker 04:
No, it does not.

[00:07:31] Speaker 01:
certificate itself does not acknowledge the place of marriage and that's what this says it has a copy of the church record containing sufficient data to identify the party, the date, and the place of the marriage and you've admitted that your certificate does not comply with this.

[00:07:47] Speaker 04:
It does not comply with the date or place.

[00:07:50] Speaker 04:
Excuse me, the place.

[00:07:51] Speaker 04:
It does have the date.

[00:07:53] Speaker 04:
It says that on the 6th of June.

[00:07:55] Speaker 01:
So you don't meet 3.205A1.

[00:08:02] Speaker 01:
You don't.

[00:08:05] Speaker 01:
So even if facially meeting it would satisfy, your client doesn't facially meet it.

[00:08:12] Speaker 04:
That is not an analysis that was made by the board or by the Veterans Court.

[00:08:17] Speaker 04:
The entire analysis was made under A-6 based upon common law merit.

[00:08:22] Speaker 04:
Now I agree with the court that that could be a problem on remand if they said that the absence of the place

[00:08:31] Speaker 04:
of the marriage was not complied with by the live testimony of the woman who performed the ceremony.

[00:08:40] Speaker 04:
But there was live testimony of the woman who performed the ceremony, who is also a signatory to that marriage certificate.

[00:08:50] Speaker 04:
We believe that there was substantial compliance with the proof of marriage.

[00:08:57] Speaker 04:
The defect was that this marriage

[00:09:00] Speaker 04:
was not valid as a common law marriage because common law marriages are not recognized in the state of Maine.

[00:09:07] Speaker 04:
The then question becomes whether or not there is an obligation under 205C to make a deemed marriage analysis.

[00:09:17] Speaker 04:
The Veterans Court said that there was no obligation on the part of the board to make that deemed valid marriage analysis under 205C.

[00:09:28] Speaker 04:
or 3.52.

[00:09:29] Speaker 02:
And that's because the board found, as a matter of fact, that there was no marriage, common law or otherwise, based upon evidence in the VA's own files.

[00:09:41] Speaker 04:
That's correct, Your Honor.

[00:09:42] Speaker 04:
And that is a valid marriage.

[00:09:44] Speaker 04:
We contend that the provisions of 205 contemplate a

[00:09:49] Speaker 04:
invalid or an unsuccessful attempt at a valid marriage.

[00:09:53] Speaker 02:
But it still requires, if you're going under a common law marriage theory, that the couple hold themselves out as married.

[00:10:01] Speaker 02:
And the evidence in record, you can shake your head at me all you want, but let me finish.

[00:10:07] Speaker 02:
The evidence to establish a common law marriage, whether it's

[00:10:12] Speaker 02:
permissible in that jurisdiction or not, requires the couple to hold themselves as married.

[00:10:17] Speaker 02:
He did not.

[00:10:18] Speaker 02:
It's uncontradicted in the VA's files that he said he wasn't married.

[00:10:22] Speaker 02:
He was divorced.

[00:10:23] Speaker 02:
He never agreed that he was married during the treatment time.

[00:10:28] Speaker 02:
So if they had been held out as married and it just wasn't permissible under the state, you might have an argument.

[00:10:37] Speaker 04:
But with respect, Your Honor, that is in response to a common law marriage.

[00:10:42] Speaker 04:
and whether or not the requirements for the common law marriage are met, we stipulate that the common law marriage requirements are not met.

[00:10:50] Speaker 02:
So you're going under A1 now then?

[00:10:52] Speaker 04:
Yes.

[00:10:53] Speaker 02:
The problem is for you under A1, there's still no evidence in the VA's files that he agreed that he was married.

[00:11:01] Speaker 02:
And they're entitled to make the determination whether he was married or not.

[00:11:05] Speaker 02:
And the board found he wasn't.

[00:11:07] Speaker 04:
But Your Honor, an examination of the text of 205C,

[00:11:12] Speaker 04:
shows that the entire analysis is to be made from the perspective not of the veteran, but from the perspective of the claimant, whether or not the claimant believed.

[00:11:24] Speaker 04:
And there is evidence in this record that there was an attempted marriage that occurred more than one year before the veteran died.

[00:11:31] Speaker 04:
There is evidence that she entered into that.

[00:11:35] Speaker 02:
We're back to your point that the claimant's proof is incontestable.

[00:11:41] Speaker 04:
Not that the claimant's proof is incontestable, but as to the, I believe that it is incontestable as to the offer of proof of marriage.

[00:11:52] Speaker 04:
However, then in order to qualify for a deemed valid marriage, you must make the 205C analysis.

[00:12:00] Speaker 04:
Otherwise, you're writing 205C out of the regulatory scheme.

[00:12:04] Speaker 03:
I don't understand the way you conditionally said incontestable.

[00:12:09] Speaker 03:
I mean, either the VA gets to inspect the marriage certificate to try to figure out whether it's true for the matter it's asserted for or not.

[00:12:26] Speaker 03:
So can the VA evaluate the veracity, credibility of the submitted marriage certificate?

[00:12:35] Speaker 04:
To the extent

[00:12:36] Speaker 04:
of whether or not it does or does not represent a valid marriage.

[00:12:41] Speaker 04:
If it does not represent a valid marriage, then you must go to 205C to determine whether or not the offer approved.

[00:12:51] Speaker 03:
So if the board looked at it and said it doesn't indicate the location of where this took place, it doesn't indicate that there were any witnesses to this event,

[00:13:04] Speaker 03:
This was only submitted after the initial application was denied, even though under the duty to assist, she was specifically requested to submit something, and she didn't submit this.

[00:13:20] Speaker 03:
And then the board further said, OK, there were inconsistent statements by the person that performed the ceremony.

[00:13:28] Speaker 03:
And then on top of all that, we have a veteran who consistently for several years

[00:13:34] Speaker 03:
it continued to assert to the VA that he was single the whole time.

[00:13:39] Speaker 03:
He was never married during that relevant period.

[00:13:44] Speaker 03:
So are you telling me that it was wrong for the board to reach all of those findings, make all those observations and reaching a conclusion that the marriage certificate was not credible?

[00:13:55] Speaker 04:
As it relates to the validity of a valid marriage based upon that certificate, I agree with that.

[00:14:03] Speaker 04:
That then triggers the requirement to look to whether or not the proof of marriage proffered can be considered a deemed valid marriage if the requirements of 205C are met.

[00:14:15] Speaker 03:
I don't know what those words mean.

[00:14:16] Speaker 03:
I mean, to me, there was one critical piece of evidence your client had.

[00:14:22] Speaker 03:
It was the marriage certificate.

[00:14:24] Speaker 03:
Yes.

[00:14:24] Speaker 03:
The board looked at it and gave five different reasons for blowing it up.

[00:14:29] Speaker 03:
So now you don't have any evidence that's credible to support the claim.

[00:14:34] Speaker 03:
Now what is the board supposed to do?

[00:14:37] Speaker 03:
Still give the fees?

[00:14:39] Speaker 03:
Still give the money to your client?

[00:14:41] Speaker 04:
No.

[00:14:41] Speaker 04:
The board is required, as requested in the briefing below, to make an analysis under 205C.

[00:14:49] Speaker 03:
What analysis is left to do?

[00:14:51] Speaker 03:
To determine... The one lone proffered proof of marriage has now been discredited.

[00:14:57] Speaker 03:
and push to the side, what's left for the board to do under the regulations?

[00:15:01] Speaker 04:
Because all that is required on that regulation is whether or not that is proof of a marriage.

[00:15:07] Speaker 04:
It is proof of a marriage.

[00:15:09] Speaker 04:
It is not proof of a valid marriage, but it is proof of a marriage.

[00:15:14] Speaker 04:
205C then requires an analysis from the claimant's point of view.

[00:15:18] Speaker 03:
But what if the board said that it's not proof of a marriage?

[00:15:25] Speaker 03:
When the board said this is not credible.

[00:15:28] Speaker 04:
I don't believe that that's what they said.

[00:15:30] Speaker 04:
They made several credibility determinations, but I do not believe that they said that this certificate is not... Okay, if it did say that, then is the case over?

[00:15:38] Speaker 04:
Yes.

[00:15:38] Speaker 01:
Okay.

[00:15:39] Speaker 01:
When you said to me that... I'm sorry.

[00:15:44] Speaker 04:
I'm not sure that I mean categorically that the case is over, because I still believe that 205C requires a separate analysis from the claimant's point of view.

[00:15:58] Speaker 04:
205c is all calculated from the claimant's point of view based upon what the claimant understood to have been a valid marriage.

[00:16:09] Speaker 04:
I'm sorry.

[00:16:10] Speaker 01:
When you told me that maybe on remand they could reject the certificate because it didn't identify a place of marriage, but they hadn't done so.

[00:16:18] Speaker 01:
Didn't they do expressly that on page 204 and 205?

[00:16:22] Speaker 01:
On page 204 and 205, they explain that there was never a valid civil or ceremonial marriage.

[00:16:29] Speaker 01:
Then they go through the document.

[00:16:30] Speaker 01:
They indicate the document was not signed by two witnesses and that the location of the ceremony is not provided on the document.

[00:16:37] Speaker 01:
204 and 205, didn't they make those express fact findings as the exact basis why they rejected the certificate of marriage which she identified as satisfying the civil slash ceremonial marriage requirement of 205A?

[00:16:56] Speaker 01:
So I don't see why I would vacate my hand to have them make the fact-findings they expressly made on this record already.

[00:17:03] Speaker 04:
I'm sorry, Your Honor.

[00:17:04] Speaker 04:
I'm not finding the spot about the date of the marriage.

[00:17:06] Speaker 01:
Appendix page 204.

[00:17:07] Speaker 04:
And 205.

[00:17:08] Speaker 01:
Carrying over onto 205.

[00:17:09] Speaker 01:
Yes.

[00:17:09] Speaker 01:
And where they say the location of the ceremony was not provided.

[00:17:12] Speaker 01:
Oh, it was not.

[00:17:12] Speaker 01:
Right.

[00:17:12] Speaker 01:
I see it.

[00:17:12] Speaker 01:
They're talking about on the certificate.

[00:17:14] Speaker 04:
I see it now.

[00:17:15] Speaker 01:
Okay.

[00:17:17] Speaker 01:
Okay, Mr. Carpenter, we will restore two minutes of rebuttal time.

[00:17:20] Speaker 01:
Let's hear from the government.

[00:17:31] Speaker 01:
Ms.

[00:17:31] Speaker 01:
Choi, please proceed.

[00:17:33] Speaker 00:
May it please the court.

[00:17:34] Speaker 00:
Ms.

[00:17:34] Speaker 00:
LaFortune asserts that the Veterans Court did not accept her 2004 marriage certificate and thus, because the Veterans Court did not accept her 2004 marriage certificate as conclusive proof of a marriage that should be deemed valid, the Veterans Court misinterpreted the law.

[00:17:52] Speaker 00:
As a first matter, this court does not have jurisdiction to entertain this appeal because Ms.

[00:17:57] Speaker 00:
LaFortune is essentially challenging the Veterans Court's factual determination.

[00:18:01] Speaker 00:
that no marriage existed between she and the veteran Mr. Castoro that would qualify her as a surviving spouse entitled to receive veterans benefits.

[00:18:10] Speaker 00:
The determination of whether a marriage existed is a question of fact that the Veterans Court reviewed for clear error.

[00:18:17] Speaker 00:
Having found no clear error in the board's findings that no common law or ceremonial marriage existed, the Veterans Court affirmed the board's decision.

[00:18:28] Speaker 00:
Now, Ms.

[00:18:29] Speaker 00:
LaFortune contends that she satisfied the correct legal standard under 3.205A1, that the Veterans Court was required to accept the 2004 marriage certificate as conclusive proof of marriage because it constitutes a church record under 3.205A1.

[00:18:47] Speaker 01:
Do you agree with Mr. Carpenter's assertion that if one of the criteria under 3.205A is satisfied, that ends the inquiry.

[00:19:00] Speaker 01:
It is dispositive and that the government is not entitled to sort of make a subsequent credibility determination about whether or not this really satisfies proof of marriage?

[00:19:10] Speaker 00:
No, that position is incorrect.

[00:19:13] Speaker 00:
Board and the Veterans Court is entitled to, as an inherent fact finder, look behind the evidence and see whether or not it weighs the evidence such that it satisfies whether or not a marriage existed.

[00:19:26] Speaker 00:
And it did so in this case.

[00:19:28] Speaker 00:
It determined that the marriage certificate was not credible.

[00:19:33] Speaker 00:
The timing of when the certificate was submitted, it was not submitted with her original application.

[00:19:39] Speaker 00:
It was only submitted after her claim for benefits was denied.

[00:19:43] Speaker 00:
the officiant on the marriage certificate was ordained through an internet site.

[00:19:48] Speaker 00:
The Veterans Court also considered the fact that the only witnesses named on the certificate was Ms.

[00:19:55] Speaker 00:
LaFortunes and purportedly the veteran.

[00:19:57] Speaker 00:
Again, the fact of the marriage could not be authenticated when the VA attempted to do so through the state of Maine and through Biditzford, the city of Biditzford, and also

[00:20:10] Speaker 00:
most importantly, the veteran's own statements, consistent statements in contemporaneous documents included informed signage submitted by the veteran in 1993, 1996, and 2001, as well as VA treatment and exam notes from 1999 and 2004 where the veteran reported that he was not married and that he was divorced or living with friends.

[00:20:32] Speaker 00:
And based on the review of the evidence that it had before it,

[00:20:36] Speaker 00:
it considered that that information from the veteran was substantially more persuasive than the information that Miss LaFortune had submitted.

[00:20:47] Speaker 00:
In fact, if you look at the pertinent statute and regulations, they substantiate and support the VA's role as fact-finder.

[00:20:55] Speaker 00:
Now, Miss LaFortune would want the court to simply look at 38 CFR 3.205A and then jump to

[00:21:05] Speaker 00:
3.205C but we see that 3.205B is the provision related to a valid marriage and it states in the absence of conflicting information, proof of marriage may be accepted as establishing a valid marriage.

[00:21:22] Speaker 03:
Is 3.205B a different circumstance than what's being evaluated in 3.205C?

[00:21:28] Speaker 03:
3.205B as I understood it was trying to

[00:21:33] Speaker 03:
figure out whether there was a valid marriage, perhaps because there was a prior earlier marriage.

[00:21:40] Speaker 03:
Whereas 3.205C is not about trying to figure out a valid marriage, but it's trying to figure out whether something can be a deemed valid marriage.

[00:21:50] Speaker 00:
Yes, Your Honor.

[00:21:50] Speaker 00:
3.205C is very limited.

[00:21:53] Speaker 03:
So I guess what I'm trying to figure out is why are you referencing a separate category, 3.205B valid marriages and

[00:22:03] Speaker 03:
the fact that the VA can expressly consider conflicting information in that circumstance, when what we're really trying to figure out here is a 3.205C deemed valid marriage.

[00:22:15] Speaker 03:
It's a different category.

[00:22:17] Speaker 03:
And so, therefore, 3.205B to me doesn't seem to actually apply and be relevant to the analysis of a 3.205 deemed valid marriage inquiry.

[00:22:28] Speaker 00:
I reference 3.205B simply to substantiate the notion that the VA is entitled to weigh evidence and review conflicting information.

[00:22:37] Speaker 03:
In a valid marriage circumstance, because the regulation expressly says it, and then the regulation for 3.205C doesn't say it.

[00:22:46] Speaker 03:
And so I'm trying to figure out whether there's some kind of inference there that maybe for 3.205B valid marriage inquiries, of course, you have to consider conflicting evidence.

[00:22:56] Speaker 03:
The regulation says that.

[00:22:58] Speaker 03:
3.205C, the neighboring subsection of this regulation, says nothing about considering conflicting information.

[00:23:04] Speaker 03:
So I'm trying to figure out whether there's an inference there that I should take away from that.

[00:23:08] Speaker 00:
Sure.

[00:23:08] Speaker 00:
But if you look at this regulation in conjunction with the statute that's pertinent, as Ms.

[00:23:14] Speaker 00:
LaFortune cites to 38 USC 103 ANC as the statutory provisions relating to marriage as pertinent to this claim, you'll see there that the evidence

[00:23:25] Speaker 00:
that submitted must be satisfactory to the secretary in order to establish a purported marriage to be deemed valid.

[00:23:32] Speaker 00:
So when you take that statute in conjunction with a full reading of 38 CFR section 3.205, we see that the VA is entitled to weigh evidence and to consider information behind the evidence that's proffered by the claimant or the appellant.

[00:23:51] Speaker 03:
Can you think of a reason why in 3.205B,

[00:23:55] Speaker 03:
That part of the regulation talks about weighing conflicting information for valid marriages.

[00:24:01] Speaker 03:
But in 3.205C, that for deemed valid marriages, it doesn't bother to mention that conflicting information ought to be assessed.

[00:24:12] Speaker 00:
3.205C is very limited in scope and pertains only to when we are going to accept the appellant's position

[00:24:22] Speaker 00:
that she had no knowledge of an impediment to the marriage.

[00:24:25] Speaker 00:
3.205C in and of itself does not establish whether or not a marriage should be deemed valid.

[00:24:33] Speaker 00:
So, again, that provision is very limited in scope.

[00:24:37] Speaker 00:
We see where a surviving spouse has submitted proof of marriage in accordance with paragraph A of this section.

[00:24:43] Speaker 00:
Then we look at, okay, did she know about the legal impediment, and if not,

[00:24:48] Speaker 00:
then we will accept her position.

[00:24:50] Speaker 01:
I understand, but I think that Judge Chen's point is that Section B gives the government the ability to weigh the proof offered under A with any conflicting information and come to a conclusion about whether it believes there was a marriage.

[00:25:07] Speaker 01:
C takes out that conflicting information weighing and just says if there's evidence under A and she meets the Section 3.1

[00:25:17] Speaker 01:
and she says that she had no knowledge of the impediment, done.

[00:25:22] Speaker 01:
So it's almost as though a valid marriage allows for weighing of evidence and a deemed valid marriage has to accept on its face what is proffered if it meets the criteria under 3.205A.

[00:25:39] Speaker 00:
When your honor says done, we would challenge what that done means.

[00:25:43] Speaker 00:
That done

[00:25:45] Speaker 00:
in the scope of 3.205C would mean that we will accept the claimant's position that she had no knowledge of the impediment.

[00:25:57] Speaker 00:
And we will accept that as proof of that fact.

[00:26:02] Speaker 01:
But what... Let me modify the facts.

[00:26:05] Speaker 01:
Suppose that her certificate in this case satisfied 3.205A1 perfectly and completely.

[00:26:14] Speaker 01:
there was no deficiency.

[00:26:17] Speaker 01:
Or suppose that she had an affidavit from the officiant, which would satisfy 3.205A3, neither of which were met here.

[00:26:25] Speaker 01:
The board made fact findings.

[00:26:27] Speaker 01:
But suppose those had, in fact, been completely satisfied.

[00:26:32] Speaker 01:
And doesn't that mean that she satisfied the requirements of C, 3.205C?

[00:26:41] Speaker 00:
She has satisfied the requirements of 3.205C to show that she did not have knowledge of the legal impediment and that we will accept her representation as such.

[00:26:52] Speaker 01:
No, it says more than that.

[00:26:53] Speaker 01:
It says, where a surviving spouse has submitted proof of marriage in accordance with paragraph A, which she would have successfully done if she had surrendered a marriage certificate that included the date and the place of her marriage.

[00:27:08] Speaker 01:
She did not.

[00:27:09] Speaker 01:
But if she had, then she would have met this first clause.

[00:27:12] Speaker 01:
She would be a surviving spouse who submitted proof of a marriage in accordance with A and also meets the requirements of 3.52.

[00:27:20] Speaker 01:
She would meet those requirements as well.

[00:27:22] Speaker 01:
There's no question she meets those requirements and had no knowledge.

[00:27:26] Speaker 01:
She would have, there are three criteria in C and she would have met all of them.

[00:27:31] Speaker 00:
Right.

[00:27:31] Speaker 00:
But then if we read further, it says in the absence of information to the contrary as proof of that fact.

[00:27:37] Speaker 00:
That fact.

[00:27:39] Speaker 00:
What do you think that language refers to?

[00:27:41] Speaker 00:
That fact refers to... Whether she had knowledge of the impediment.

[00:27:44] Speaker 00:
Whether or not she had knowledge of the legal impediment.

[00:27:47] Speaker 00:
Okay.

[00:27:47] Speaker 00:
Not whether or not she is able to establish a deemed valid marriage.

[00:27:51] Speaker 00:
Because again, if you take this in conjunction with the statute, that relates... I don't see how this helps you.

[00:27:57] Speaker 01:
I think this only hurts you.

[00:27:59] Speaker 01:
That section says we're going to take contrary information into account in assessing

[00:28:04] Speaker 01:
whether she acknowledged the impediment, but it doesn't say we're going to allow conflicting information with regard to her proof of marriage.

[00:28:12] Speaker 00:
But when taken in conjunction with the VA's inherent role as a fact-finder and turning again to 38 USC 103, where it states that the evidence must be satisfactory to the secretary in order to establish a purported marriage to be deemed valid, you can't skip over

[00:28:32] Speaker 01:
some other analysis as to what other contradictory evidence might be in the record, and certainly the board here... Well, the secretary, hasn't the secretary articulated in this regulation what would be the criteria for what would satisfy the secretary pursuant to the statute?

[00:28:46] Speaker 01:
Isn't the regulation do exactly that?

[00:28:48] Speaker 00:
The regulation in 3.205A sets forth examples of types of evidence that it will accept, but as we... Not just accept, it says marriage is established by one of the following types of evidence.

[00:29:02] Speaker 00:
But here, even when Ms.

[00:29:04] Speaker 00:
LaFortune relies on 38A1, she does not facially meet the requirements or criteria in A1 because the certificate of marriage that she has proffered at appendix 45 does not state the location of marriage.

[00:29:19] Speaker 03:
Is it possible that 3.205B for valid marriage inquiries talks about the possibility of conflicting information because that

[00:29:31] Speaker 03:
subsection of the rule is already contemplating a possible battle of the marriages where there's two different people claiming to be married to the veteran.

[00:29:41] Speaker 03:
And so therefore, 3.205B is recognizing the possibility of instances where there's going to be conflicting information, where there's a party protesting someone else's assertion of being married to a veteran.

[00:29:59] Speaker 03:
and that's why it's talking about conflicting information in that instance.

[00:30:03] Speaker 00:
Yes, certainly in B, it does reference that dissolution of a prior marriage must be shown before marriage can be accepted as valid.

[00:30:11] Speaker 03:
You, in your red brief, I think you cited an opinion, Madden versus Goeber.

[00:30:17] Speaker 00:
Yes, Your Honor.

[00:30:18] Speaker 03:
In that opinion, this court said the VA always has an inherent authority to

[00:30:26] Speaker 03:
weigh evidence that's submitted and evaluate the strength of evidence that's being submitted and not simply blindly accept whatever is submitted for the truth of the matter is asserted?

[00:30:38] Speaker 00:
Yes, Your Honor, and here they looked very carefully at the marriage certificate in and of itself and found it not to be credible because of the several factors that the Veterans Court set forth at Appendix 9.

[00:30:51] Speaker 00:
Taken in conjunction with the Veterans own

[00:30:56] Speaker 00:
statements throughout the course of several years, 93, 96, 2001, 1999, and 2004, the Veterans Court and the board found that that evidence was significantly more persuasive than anything that Ms.

[00:31:09] Speaker 00:
LaFortune had proffered and therefore did not find that a marriage existed ceremonial, civil, common law, or otherwise.

[00:31:26] Speaker 00:
If there are no further questions, we respectfully ask that the court dismiss this appeal for lack of jurisdiction.

[00:31:31] Speaker 00:
But if the court does seek to address the merits of this appeal, we ask that the court affirm the Veterans Court's decision.

[00:31:37] Speaker 01:
Okay.

[00:31:38] Speaker 01:
Thank you, Ms.

[00:31:39] Speaker 01:
Choi.

[00:31:39] Speaker 01:
Mr. Carpenter, you have two minutes of rebuttal.

[00:31:46] Speaker 04:
I have read the bottom of page 204 going on to 205, and it appears

[00:31:56] Speaker 04:
to me that this is addressing the question of only the validity of the ceremonial marriage, not the offer of proof of the marriage certificate, and that it does not speak to the marriage certificate as contemplated under A1.

[00:32:12] Speaker 04:
It does refer to that lack of location, but it does not make specific reference to this analysis of the facts being under A1.

[00:32:25] Speaker 04:
It seems to me that the validity of the marriage is an issue in subsection B of 205 when there is a contest.

[00:32:37] Speaker 04:
The question of validity of marriage under A is not an issue.

[00:32:42] Speaker 04:
The term valid is not used there, merely that that is proof or proffer or offer of proof, which if accepted under A is the end of the matter.

[00:32:54] Speaker 04:
if it is not accepted under A, then the question in this case is whether or not Miss LaFortune was entitled to the benefit of consideration and analysis of whether or not the marriage was deemed valid under 205C.

[00:33:09] Speaker 04:
That's just for the questions from the panel.

[00:33:11] Speaker 04:
I thank you for your attention.

[00:33:13] Speaker 01:
Okay.

[00:33:14] Speaker 01:
Thank you.

[00:33:14] Speaker 01:
The case is taken under submission.

[00:33:16] Speaker 01:
I thank both counsel.

[00:33:18] Speaker 01:
Our next case