                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                      2008-7063

                                 SHELIA WINSETT,

                                                            Claimant-Appellant,

                                          v.

                JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

                                                            Respondent-Appellee.


      Shelia Winsett, of Parrish, Alabama, pro se.

      Kenneth S. Kessler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Steven J. Gillingham, Assistant Director.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Mary J. Schoelen
                       NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                       2008-7063


                                   SHELIA WINSETT,

                                                              Claimant-Appellant,

                                            v.

                JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

                                                              Respondent-Appellee.


Appeal from the United States Court of Appeals for Veterans Claims in 05-0859, Judge
Mary J. Schoelen.

                            __________________________

                               DECIDED: July 10, 2008
                            __________________________


Before MICHEL, Chief Judge, NEWMAN and BRYSON, Circuit Judges.

PER CURIAM.

      Shelia Winsett appeals from the final decision of the United States Court of

Appeals for Veterans Claims (“Veterans Court”) affirming the decision of the Board of

Veterans’ Appeals (“Board”) denying Winsett recognition as the surviving spouse of

Gary W. Jacks, a deceased veteran, for the purpose of awarding benefits from the

Department of Veterans Affairs (“VA”). See Winsett v. Nicholson, No. 05-0859 (Vet.

App. Sep. 5, 2007). For the reasons set forth in this opinion, we affirm.
                                I.    BACKGROUND

      Winsett and Jacks were married in Alabama on January 2, 1969. Jacks then

served on active duty in the Army from May 1969 to January 1972. Several years after

his discharge, in October 1977, Winsett and Jacks divorced.       But various housing,

insurance, bank and medical records referred to Winsett as Jacks’ spouse as late as

1983. According to family and friends, Winsett and Jacks generally held themselves out

as a married couple, cohabited for approximately three years following the divorce,

cohabited occasionally afterward, and Winsett cared for Jacks when he became ill

before dying in June 1989.

      However, Winsett remarried in October 1981, moving in with her new husband,

James Morris. A county record from February 1982 reported that Jacks lived with his

mother. Winsett divorced Morris in April 1983, and VA records and correspondence

from Jacks and Winsett from 1983 onward stated that they were divorced and generally

lived at separate addresses. Jacks’ death certificate indicates his marital status was

divorced with no surviving spouse.

      In July 1989, shortly after Jacks’ death, Winsett applied to the VA for dependency

and indemnity compensation benefits. She indicated on her application that she was

divorced and had not cohabited continuously with Jacks from the date of marriage until

his death.   A long period of VA review, applications for other benefits, evidentiary

submissions, and case development followed. Eventually, in December 1999, the VA

regional office (“RO”) denied Winsett’s claim to be recognized as the surviving spouse

of Jacks. Winsett appealed to the Board, but the Board sustained the RO’s decision in

October 2000. Winsett then appealed to the Veterans Court, and several years of




2008-7063                                 2
remands and case development followed due to the passage of the Veterans Claims

Assistance Act of 2000 (“VCAA”).

       Ultimately, in May 2004, Winsett was given a personal hearing. The RO then

denied her claim for recognition as Jacks’ surviving spouse yet again. In July 2004, the

RO sent her a Supplement Statement of the Case (“SSOC”) reflecting this decision.

Winsett appealed, and the Board once again sustained the RO decision in January

2005. Winsett appealed this decision to the Veterans Court. On September 5, 2007,

the Veterans Court affirmed the Board’s decision. Winsett timely appealed to this court.

                                   II.    DISCUSSION

       We have jurisdiction over final decisions of the Veterans Court under 38 U.S.C.

§ 7292(a). Our scope of review, however, is limited to "the validity of a decision of the

[Veterans Court] on a rule of law or of any statute or regulation . . . or any interpretation

thereof (other than a determination as to a factual matter) that was relied on by the

[Veterans Court] in making the decision." Id. Absent a constitutional question, this

court may not review "(A) a challenge to a factual determination, or (B) a challenge to a

law or regulation as applied to the facts of a particular case." 38 U.S.C. § 7292(d)(2);

see also Maggitt v. West, 202 F.3d 1370, 1374 (Fed. Cir. 2000).

       Winsett raises a host of arguments. First, she argues that the Veterans Court

erred by applying the wrong law in reviewing whether the Board clearly erred in finding

that she was not the common law spouse of Jacks after their divorce. The Board held

that Alabama state law governs whether she was Jacks’ common law spouse. The

Veterans Court agreed and relied on Scott v. Principi, in which the Veterans Court

observed that the requisite elements to establish common law marriage in Alabama are:




2008-7063                                    3
(1) capacity, (2) present agreement or mutual consent to enter into marriage, (3) public

recognition of the existence of the marriage, and (4) cohabitation or mutual and open

assumption of marital obligations. 3 Vet. App. 352, 354 (1992) (citing Adams v. Boan,

559 So. 2d 1084, 1086 (Ala. 1990)). Winsett argues that Creel v. Creel, 763 So. 2d

943, 946 (Ala. 2000), instead is the correct law. We discern no difference between the

rule of law articulated in Scott and the rule articulated in Creel; in fact, both cases rely

on Adams. Thus, the Veterans Court did not apply the wrong law in reviewing whether

the Board correctly found that Winsett was not the common law spouse of Jacks. And

we lack jurisdiction to review whether the Veterans Court applied that law correctly to

the facts of this case.

          Winsett also argues that the Veterans Court erred by holding that the VA’s failure

to notify her representative to complete a Form 646, Statement of Accredited

Representative, prior to her Board appeal did not prejudice her case. She argues that

this failure is: (1) presumed prejudicial because it is a VCAA notice error, and (2)

violative of her due process rights because she was denied representation. However,

Winsett has not identified, nor are we aware of, any statute or regulation that indicates

that Form 646 was required to establish her claim, or that the VCAA otherwise requires

the VA to inform the applicant of Form 646. And, as the Veterans Court observed, the

lack of Form 646 did not affect the adjudication of her claim in any way. Winsett’s

representative was able to file extensive briefing for her appeal to the Board, and

Winsett was able to submit extensive evidence, all without having filed Form 646. Thus,

we cannot discern any violation of the VCAA or any violation of Winsett’s due process

rights.




2008-7063                                     4
       Third, Winsett argues that the Veterans Court erred by incorrectly holding that

the VA did not err by allowing David Fynan, the author of the December 1999 RO

decision denying her claim, to attend and participate as a witness in Winsett’s May 2004

personal hearing. Under 38 C.F.R. § 3.103(c), the VA officer conducting a personal

hearing cannot have “participate[d] in the proposed action or the decision being

appealed.” The Veterans Court held Fynan’s attendance did not violate this regulation

because neither mere attendance nor appearance as a witness constitutes the

“conducting” of the hearing.    The Veterans Court noted that a different VA officer,

Gwendolyn Scruggs, conducted the hearing. We see no error in the Veterans Court’s

interpretation of § 3.103(c).

       Winsett next argues that the Veterans Court erred by holding that it did not have

jurisdiction to hear her arguments regarding an accrued benefits claim that had not yet

been adjudicated by the Board. We see no error in the Veterans Court’s decision as to

its lack of jurisdiction in the absence of a Board decision on the claim. Winsett also

argues that the Board and Veterans Court failed to consider various pieces of evidence.

We see no merit in this argument because the VA, the Board, and the Veterans Court

are presumed to have considered all of the evidence of record. See Newhouse v.

Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007). Winsett has not articulated any basis

for holding that this presumption is overcome here. We further see no merit in any of

Winsett’s remaining arguments. As a result, we affirm.




2008-7063                                  5
