BVA9501603 DOCKET NO. 93-05 455 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether the appellant was the spouse of the veteran at the time of the veteran's death, either by legal ceremony or by common-law marriage, so as to establish a status as a claimant for Department of Veterans Affairs death benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and her daughter ATTORNEY FOR THE BOARD Thomas H. Tousley, Associate Counsel INTRODUCTION The veteran had active military service from March 1943 to September 1944. He died in October 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 1992 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The RO determined that the appellant was not entitled to VA death benefits because she had not established that she was married to the veteran prior to his death, either by legal ceremony or by common-law. At a hearing at the RO in August 1992, the appellant testified that she and the veteran had a spiritual marriage in Florida around 1977 followed by a legal marriage ceremony one year later. The Board will address the issue of whether the appellant has proven she had a valid marriage to the veteran under the applicable state law. However, her testimony raises a question as to whether the appellant and the veteran believed themselves to be married even if all the legal formalities for marriage in Florida had not been met. The Board notes that the RO did not develop the issue of a "deemed valid" marriage. The Board determines that the issue of a deemed valid marriage is not inextricably intertwined with the current appeal, and it is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that she and the veteran lived continuously as husband and wife for over twelve years as many witnesses have affirmed. She asserts that they had several checking accounts together and maintained at least three residences together. She further contends that she and the veteran never applied for additional pension based on their marriage because the veteran's pension took care of their basic necessities. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has not proven by the applicable burden of proof that she was the spouse of the veteran by a legal marriage ceremony or by common-law marriage at the time of the veteran's death. FINDINGS OF FACT 1. The appellant has not proven by the preponderance of the evidence that she married the veteran by a legal marriage ceremony. 2. The appellant has not proven by clear and convincing evidence that she had a common-law marriage with the veteran in Ohio. CONCLUSION OF LAW The appellant has not proven that she was the spouse of the veteran at the time of the veteran's death so as to establish a status as a claimant for Department of Veterans Affairs death benefits. 38 U.S.C.A. §§ 101, 103(c), 1541 (West 1991); 38 C.F.R. §§ 3.1(j), 3.205 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. General Laws and Regulations At the time of the veteran's death in October 1990, he was in receipt of VA nonservice-connected disability pension. The "surviving spouse" of a veteran may be entitled to receive VA nonservice-connected death pension if the veteran was in receipt of nonservice-connected pension at the time of the veteran's death. 38 U.S.C.A. § 1541 (West 1991). A "surviving spouse" means someone who was the spouse of the veteran at the time of the veteran's death. 38 U.S.C.A. § 101(3). The appellant contends that she was the spouse of the veteran because she claims she was legally married to the veteran at the time of his death, thereby entitling her to apply for VA death pension. In order for an applicant to be considered a "claimant" for VA death benefits, VA law requires that the applicant must prove by the preponderance of the evidence that he or she was married to the veteran at the time of the veteran's death. If the applicant does not prove that he or she was married to the veteran, then the VA has no duty to obtain additional evidence or to take further action regarding the claim for VA death benefits, and the appeal must be denied by the Board. Aguilar v. Derwinski, 2 Vet.App. 21, 23 (1991); see also Scott v. Principi, 3 Vet.App. 352 (1992), Brillo v. Brown, No. 93-462 (U.S. Vet. App. Oct. 7, 1994). For VA benefit purposes, a "spouse" is a person of the opposite sex who is husband or wife. 38 U.S.C.A. § 101(31) (West 1991). A marriage "means a marriage valid under 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 rights to benefits accrued." 38 C.F.R. § 3.1(j) (1993). The applicant can prove the existence of a marriage by the submission of various public records: A copy of a public record of marriage; an affidavit of the clergyman or magistrate who officiated the ceremony; the certificate of marriage; the affidavits or certified statements of two or more eyewitnesses to the ceremony; and any other reliable secondary evidence of marriage. In states that recognize a common-law marriage, an affidavit or certified statement from one or both of the parties detailing certain information can be accepted. 38 C.F.R. § 3.205(a) (1993). In the absence of conflicting information, proof of a legally valid marriage which meets the requirements of 38 C.F.R. § 3.205(a), along with a certified statement by the applicant concerning the dissolution of any prior marriage, may be accepted as establishing a valid marriage so long as the evidence is corroborated by the evidence of record. 38 C.F.R. § 3.205(b) (1993). B. Marriage By Legal Ceremony Initially, the Board notes that the appellant submitted copies of two divorce decrees that show the veteran was divorced in January 1975 in Ohio from his second wife, and the appellant was divorced in February 1977 in Ohio from her second husband. It appears that the appellant and the veteran were free to marry after her divorce in February 1977. As mentioned previously, the testimony of the appellant and her daughter at a hearing at the RO in August 1992 raises a question of whether the appellant and the veteran were married by legal ceremony in Florida. The appellant's testimony is somewhat confusing, but she essentially stated that they had a "spiritual marriage" ceremony around 1977, followed by a legal marriage ceremony around 1978. She added that she believed they obtained a marriage certificate in Florida at that time, like the type issued by the authorities in Ohio. The appellant was apparently familiar with the Ohio marriage certificate as a result of her two marriages prior to living with the veteran. The Board notes, however, that the appellant has failed to produce any of the documents described in 38 C.F.R. § 3.205(a)(1)-(5), including the marriage certificate. In addition, although the appellant cut-off her daughter's testimony at one point regarding the claimed Florida marriage, the daughter stated the veteran and the appellant did not have a "legal document." Furthermore, considering the statements submitted by the veteran just prior to his death that he married the appellant in Ohio, in which he made no mention of a marriage to the appellant in Florida, her testimony does not meet the requirements of 38 C.F.R. § 3.205(a)(7) because it does not provide reliable secondary evidence which reasonably supports a belief that a valid marriage by legal ceremony occurred in Florida. Thus, she has failed to prove a valid marriage by legal ceremony in Florida by the preponderance of the evidence. Received in June 1990 was the veteran's request that the VA pay additional pension based on his claimed marriage to the appellant. He reported on a Declaration of Status of Dependents, dated in December 1989, that he married the appellant in 1978 in Ohio. He submitted no evidence of marriage by legal ceremony in Ohio. In January 1991, the appellant reported on her application for VA death pension that she married the veteran in Ohio. The appellant has submitted no evidence of a marriage to the veteran by legal ceremony in Ohio. Thus, she has fallen far short of showing by the preponderance of the evidence a marriage to the veteran by legal ceremony in Ohio. C. Common-law Marriage A common-law marriage consummated in Florida after January 1, 1968 is invalid under Florida law. West's Fla.Stat.Ann. § 741.211 (1986). Therefore, since the appellant testified at the RO hearing in August 1982 that she lived with the veteran in Florida in 1977 and 1978, and since both parties were still married to other persons in 1968, a common-law marriage could not have been established between the appellant and the veteran under Florida law. However, the statements by the appellant and others as well as certain documents raise the issue of whether she established a common-law marriage with the veteran in Ohio. As will be discussed, there is conflicting information in the record as to the existence of a common-law marriage in Ohio between the appellant and the veteran. Thus, the appellant's statements are insufficient by themselves to prove a common-law marriage under 38 C.F.R. § 3.205(a). The law regarding the formation of common-law marriage in Ohio was summarized by the Ohio Supreme Court in Nestor v. Nestor, 472 N.E.2d 1091 (1984). An agreement of marriage in praesenti when made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, they being so treated and reputed in the community and circle in which they move, establishes a valid marriage at common law. Id. at 1094 (quoting from Umbenhower v. Labus (1912), 85 Ohio St. 238, 97 N.E. 832). Furthermore: The fundamental requirement to establish the existence of a common law marriage is a meeting of the minds between the parties who enter into a mutual contract to presently take each other as man and wife. The agreement to marry in praesenti is the essential element of a common law marriage. Its absence precludes the establishment of such a relationship even though the parties reside together and openly engage in cohabitation. Although cohabitation and reputation are necessary elements of a common law marriage, this court has previously held that standing alone they do not constitute a common law marriage. The contract of marriage in praesenti may be proven either by way of direct evidence which establishes the agreement, or by way of proof of cohabitation, acts, declarations, and the conduct of the parties and their recognized status in the community in which they reside. However, all of the essential elements to a common law marriage must be established by clear and convincing evidence. Regarding the standard of proof required to establish a common- law marriage, one Ohio court explained: Clear and convincing evidence has been variously defined as that degree of proof, though not necessarily conclusive, which will produce in the mind of the court a firm belief or conviction, of that degree of evidence which is more than a preponderance but less than beyond a reasonable doubt. Jolley v. Jolley, 347 N.E.2d 557, 560 (1975). Hence, because the VA is bound by statute to determine the validity of a marriage by the law of the state in which the purported marriage took place, and since the appellant contends that she formed a common-law marriage with the veteran in Ohio, she must prove the purported common-law marriage by the more exacting standard of clear and convincing evidence rather than merely by the preponderance of the evidence standard discussed by the United States Court of Veterans Appeals in Aguilar. The Ohio Supreme Court also stated in Nestor: Where there is no direct proof in reference to the formation of the contract of marriage in praesenti, testimony regarding cohabitation and community reputation tends to raise an inference of the marriage. This inference is given more or less strength according to the circumstances of the particular case. The inference is generally strengthened with the lapse of time during which the parties are living together and cohabiting as man and wife. Where there is direct evidence concerning the formation of marriage in praesenti and a finding by the court, as here, that such a contract exists, the evidence of long- time cohabitation and reputation of living together as husband and wife should be given even greater weight to further strengthen the inference of marriage. As to the element of cohabitation, there must be proof that the parties had sexual activity in the open manner of husband and wife in a marital state.... As to the element surrounding the reputation of the parties in the community as being man and wife, in order to establish a common law marriage it is not necessary that they disseminate information to all society generally, or to all of the community in which they reside. Rather, there must be a holding out to those with whom they normally come in contact.... Nestor v. Nestor, 472 N.E.2d 1091, 1094-1095. Later in the opinion, the Ohio Supreme Court did not find significant the fact that the appellant in that case continued to use her last name from a prior marriage for business purposes during her claimed common-law relationship. The Ohio Supreme Court commented: In today's social structure, we may take judicial notice that many married women maintain their former maiden or married names, and there is no law that a married woman use her current maiden name. Id. at 1095. Initially, the Board notes that the appellant reported in December 1991 on a Statement of Marital Relationship that she began living with the veteran as husband and wife in September 1972. However, VA records show the veteran lived in Tennessee from December 1972 to January 1974, and the appellant has not reported that she lived with the veteran in that State. Moreover, the appellant's statement that their marriage began in 1972 is unfavorable evidence to the appellant. Under Ohio law, once two people enter into a meretricious (illicit) relationship by living as husband and wife while still married to other people, there is a presumption that the illegal relationship continues even if both parties later obtain divorces and are free to marry. An meretricious relationship cannot form the basis of a common-law marriage in Ohio. In this case, as previously mentioned, the appellant and the veteran submitted statements and copies of divorce decrees showing she and the veteran were still married in September 1972 to other people. This evidence would not only fail to rebut the presumption of a meretricious relationship, but instead would prove the existence of a meretricious relationship. Hence, if the Board were to accept the appellant's statement that she formed a common-law marriage to the veteran in 1972, the claimed common-law marriage would be invalid under Ohio law. See In re Estate of Maynard, 192 N.E.2d 281, 286 (1962). However, the appellant has submitted other statements and testified at the August 1992 RO hearing that her claimed marital relationship with the veteran began around 1977 or 1978. This assertion is more consistent with the veteran's December 1989 Declaration of Status of Dependents and the statements of other people submitted by the appellant in support of her claim. Therefore, since the veteran apparently lived in a different state than the appellant during the early 1970's, the Board will address whether the appellant has proven by clear and convincing evidence that she formed a common-law marriage in Ohio with the veteran during the period from the late 1970's to his death in October 1990. An agreement in praesenti means an agreement to marry in the present, and not an agreement to marry in the future. Id. Assuming, but without finding, that the appellant and the veteran reached an agreement to marry while living in Florida as evidenced by a "spiritual marriage" performed there around 1977, this evidence still cannot establish a common-law marriage in Ohio since the agreement was not formed in Ohio. In addition, since common-law marriage had been illegal in Florida since 1968, they could not have formed a common-law marriage in Florida in the late 1970's that would be recognized by Ohio. Id. Although, as previously mentioned, the veteran reported shortly before his death that he married the appellant in Ohio in January 1978, neither he nor the appellant submitted any substantial and probative direct evidence of an agreement to marry in praesenti in the State of Ohio. A careful review of the appellant's testimony at the August 1992 RO hearing fails to show the appellant and the veteran specifically agreed to take each other as husband and wife despite the fact that each was familiar with the institution of marriage as evidenced by their own prior marriages. Unlike the facts in Nestor, there is no evidence that the appellant moved her possessions into the veteran's house, the veteran then proposed marriage which the appellant accepted, and which was followed by an announcement to family and friends. The Board determines that the mere fact the veteran reported to the VA in 1990 that he had married the appellant in 1978 is not direct evidence of an agreement to marry in praesenti. Thus, without direct evidence of an agreement in this case, the inference of marriage based on cohabitation and reputation in the community will not be as strong even if there is indirect evidence of an agreement to marry. Nestor at 1094. The Board must look to the indirect evidence of an agreement to marry in praesenti, which as explained by the Ohio Supreme Court in Nestor, necessarily involves reviewing the evidence regarding cohabitation and reputation in the community, the second and third elements of common law marriage in Ohio. As to the element of cohabitation, there has been little or no proof that "the parties had sexual activity in the open manner of husband and wife in a marital state." Nestor at 1094. No children were born of the relationship. The only evidence in the record regarding this matter is the veteran's remark to a VA psychiatric examiner in May 1990 that the appellant did not care too much about sex. The Board recognizes that at the time the veteran made the remark his ability to engage in sex would have been affected by the removal of his testes in October 1989 due to prostate cancer. However, since the appellant has the burden of establishing her status as claimant, the Board can only rely upon the evidence currently of record in reaching its decision. In this case, based on this equivocal evidence of a sexual relationship, there is neither clear and convincing evidence of cohabitation to meet the second element of common-law marriage, nor sufficient evidence of cohabitation to support a strong inference of marriage to prove the element of an agreement to marry in praesenti. The remaining element concerns "the holding out of the parties' marital status in their community, and the corresponding knowledge of such status within the community and those in contact with the parties." Id. Like the Court of Appeals of Ohio in the case of In re Estate of Maynard, the Board finds that relevant documentary evidence produced by the veteran during the course of the claimed common-law marriage holds great weight. The Board can look to see if VA records support the appellant's contention that she and the veteran lived together since at least 1978. At the time of the veteran's request in June 1990 to add the appellant as a dependent for VA pension payment purposes, he did not report the addresses at which they lived together. The appellant, however, did so on a Statement of Marital Status. The Board recognizes that the VA did not need the veteran's home address for him to receive his monthly pension payment since the pension payments had been directly deposited into his bank account since 1979. However, the VA did need his home address to send to him the annual pension questionnaire that had to be completed by him in order to continue to qualify for his pension. Thus, the Board finds the home addresses that he reported to the VA throughout the years to be significant, probative evidence of where he lived during the purported common-law marriage. The first two columns of the chart below show the addresses reported by the veteran to the VA and the dates he reported them to the VA. The last two columns show the addresses the appellant submitted to the VA in June 1990 as being the places they resided together and the time periods for which they cover. The house numbers have been intentionally omitted. Veteran Appellant Date Time Reported Address Period Addr 7/77 East 123rd St. Cleveland 3/79 " 1978-1983 St. 4/79 Amor Ave. " Cleveland 7/84 East 142nd St. 1983-1984 Saywel Cleveland 1/85 Garden St. 1984-1986 Street Elyria 11/86 Chesterfield 1986-1988 Chesterfield Cleveland 8/88 East 142nd St. " Cleveland 12/88 Irondale Ave. 1988-1990 Irondale Ave. Elyria First, the Board notes that the veteran never reported living in Florida as testified to by the appellant and as stated by an acquaintance of the couple in December 1990. Second, the appellant's affirmative response to a question by the hearing officer at the August 1992 RO hearing that she had lived with the veteran on Amor Avenue in Cleveland, thereby indicating she lived with the veteran prior to 1985, is contradicted by the fact she did not report the address on her June 1990 statement. Third, it is not until January 1985 that the addresses reported by the veteran and the appellant continuously match. Fourth, even if they began living together in 1978, the veteran reported to a VA psychiatrist in May 1990 that he had lived "on and off" with the appellant for the past twenty years. The Board finds the veteran's remark significant because it was clinically obtained during the course of an examination, and not in support of a claim for additional benefits. Fifth, the copies of the joint checking account and of the gas company bill and payment receipt, indicating they lived together, go back only as far as June 1990. This evidence directly contradicts those statements that have been offered to establish that the veteran and the appellant lived together continuously since 1978. The most that can be garnered from this conflicting evidence is that the veteran and the appellant resided together continuously during the last year of his life. To the extent that the evidence does not show they resided together continuously since 1978, proof of an agreement to marry is weakened. As to reputation of the parties in the community as being husband and wife, the appellant has submitted statements from four people who related that the appellant and the veteran were known as husband and wife for several years. The statements indicate the appellant and the veteran referred to each other as husband and wife, and never denied that they were married. As mentioned previously, there is evidence that they were known to preach their faith together outside of their home. Furthermore, in addition to the previously mentioned May 1990 VA psychiatric examination where the veteran reported that he had been married to the appellant on and off for twenty years, the same information was noted by a VA examiner in August 1990. Again, the Board finds significant that he referred to the appellant as his wife at the examinations because the information was not specifically offered in support of his claim to add the appellant as a dependent for VA pension payment purposes. In addition, they held a joint bank account during the last year of his life. The gas bill for their residence during the last year of his life also appears to have been in their names as husband and wife. The appellant was listed as the veteran's spouse on the death certificate. She also made the funeral arrangements and made herself liable for the balance of approximately $500 of the funeral expenses not covered by VA burial benefits. Thus, there is probative evidence that they held each other out as husband and wife to family and friends and had a close relationship at the time of his death. In addition, the appellant reported that she only sometimes used the veteran's last name. In light of the remarks of the Ohio Supreme Court in Nestor that such a fact should not be held against a woman claiming a common-law marriage, and in view of the fact that the appellant's last name apparently reflects her Krishna faith, the Board does not consider her infrequent use of the veteran's last name detrimental to her case. Furthermore, the appellant and her daughter testified at the August 1992 RO hearing that the appellant was not receiving Social Security Survivors benefits even though the veteran had been receiving Social Security Retirement benefits since 1985. Although the record contains the VA Form SSA-24, Social Security Administration Application For Survivors Benefits, completed by the appellant and dated in December 1990, the Board is unable to determine if the appellant has filed a claim with the Social Security Administration which has been adjudicated. Thus, since the Board is unable to determine if the Social Security Administration does or does not consider her a surviving spouse of the veteran, her non-receipt of Social Security Survivors Benefits will not be held against her. However, the probative evidence of holding themselves out as husband and wife to family and friends and of a close relationship at death must be weighed against how the veteran presented their relationship to the VA because the VA was an institution that the veteran normally came in contact with during the purported common-law marriage. VA pension records show that for almost the entire period from 1978 until his death, he held himself out to the VA as not being married to the appellant. Even though claiming the appellant as his wife may have entitled him to additional pension during the purported twenty-year marriage, particularly in light of the appellant's RO testimony that her activities for her faith over the years produced no taxable income, he failed to do so. Furthermore, even if they did not need additional income as contended by the appellant, it would not have burdened the veteran to have accurately reported his marital status by merely checking another box. The relevant VA pension records submitted by the veteran from 1979 to 1990 consist of an election of improved pension form, several income-net worth statements, and several annual pension questionnaires. He reported in March 1979 that he was married, but separated. He reported in January 1980 that he was divorced. In November 1986, he reported he was not married.. In August 1987, he apparently initially checked the box for married, living with a spouse, then obliterated the check mark, and then checked the box for not married. In August 1988, he reported that he was not married. It was not until August 1990, less than a year before his death, that he reported on a pension report that he was married and living with his spouse. Although the Board recognizes that Ohio law does not require that the veteran have held himself out as married to the appellant to everyone, the Board determines it is legally significant that he failed to do so for many years to a government agency that provided most if not all of his income for thirty years, and from which he could have received additional income based on marriage, and which required no great effort on his part to report. Furthermore, the Board considers the timing of the veteran's request to add the appellant as a dependent to be a consideration in the Board's decision. The VA general medical examination in May 1990 showed that the veteran had been treated for cancer of the prostate in 1989 with, as previously mentioned, removal of his testes. A VA X-ray of the veteran's pelvic area at the general medical examination showed changes consistent with metastasis. The examining physician noted that a bone scan was needed for definite diagnosis. The appellant testified at the RO hearing in August 1992 that the veteran was bedridden during the last year due to his cancer. She also testified that it was the veteran who initiated the idea of requesting that the appellant be added as a dependent for VA pension payment purposes. A mutual friend stated in December 1990 that the veteran was very concerned about how his "wife" would fare once he was gone, and so he had requested supplemental benefits for her. This evidence shows that the veteran's June 1990 request was prompted by his knowledge of his impeding death. His action reflects great compassion and provides evidence that he considered the appellant as his wife. As in Nestor, the Board finds the evidence that she took care of the veteran while he was seriously ill to be very favorable to her claim, as well as her arrangement of his funeral and cremation. However, the Board also finds significant the fact that there has been no evidence submitted that either party contemplated marriage by ceremony in Ohio despite their familiarity with the institution. Even as the veteran neared death, he was able to go to a VA examination unaccompanied as late as August 1990. There is no evidence that he was unable to go through the application process for marriage, or to attend a marriage ceremony. There is no evidence that preparations were being made or discussed to be married by ceremony. Moreover, although she and the veteran apparently did not acquire wealth due to their spiritual faith, the Board finds significant the fact that the appellant has not submitted any document that shows the veteran and the appellant bound themselves in a legally significant manner during their purported 12-to 20-year marriage. She has not submitted applications for loans, credit cards, rental of apartments or houses, purchases of real or personal property (no matter how small), or joint tax returns, wills, or other similar documents which might reflect the parties agreement go beyond cohabitation to assume the rights and responsibilities of marriage. In view of the conflicting evidence as to when they resided together and how they presented themselves to the world, the Board cannot find that the appellant has established the element of reputation in the community by clear and convincing evidence. Moreover, the evidence that the veteran did not consistently present himself to the world as married until shortly before his impeding death does not support a finding of a strong inference of marriage that could be used to help establish the first element of an agreement in praesenti to marry. The courts of Ohio mandate a high standard of proof to establish a common-law marriage. Based on the evidence, the Board concludes that the appellant has not proven a common-law marriage to the veteran by clear and convincing evidence. Therefore, her appeal must be denied. ORDER The appeal is denied because the appellant has not proven that she was a spouse of the veteran at the time of his death. CHARLES E. HOGEBOOM Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.