BVA9504089 DOCKET NO. 92-23 576 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Entitlement to Department of Veterans Affairs death benefits as surviving spouse of the veteran. ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran had almost continuous active service from July 1917 to October 1947. In October 1987, the appellant was awarded Department of Veterans Affairs (VA) death benefits as surviving spouse of the veteran. In October 1989, the VA Regional Office, Manila, held that she could not be recognized as his surviving spouse since she had a prior subsisting marriage to [redacted]. In January 1992, the appellant submitted additional information for the purpose of reopening her claim. In February 1992, the regional office held that the additional evidence was not new and material and was insufficient to reopen the claim. The appellant appealed from that decision. The case was initially before the Board of Veterans' Appeals (Board) in September 1994 when it was concluded that the appellant had timely submitted a notice of disagreement with the October 1989 administrative determination and that that determination was therefore not final. The case was remanded so that the regional office could conduct a de novo review of the appellant's claim. That action was accomplished and a supplemental statement of the case was sent to the appellant in October 1994. The case is again before the Board for further appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that she should be entitled to recognition as surviving spouse of the veteran and entitled to VA death benefits since her marriage to [redacted] was only a simulated marriage and was done in order to spare her from being sexually assaulted by the Japanese soldiers who were then criminally assaulting unmarried young women in Zamboanga City during the Japanese occupation of the Philippines. 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 preponderance of the evidence is against the appellant's claim for entitlement to VA death benefits as surviving spouse of the veteran. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the regional office. 2. The appellant and the veteran were married in September 1965 in the Republic of the Philippines. A prior marriage of the veteran to [redacted] in April 1922 had ended with her death in July 1964. 3. The veteran died in April 1987. In October 1987, the appellant was awarded VA death benefits as surviving spouse of the veteran. 4. In October 1989, her award of VA death benefits was discontinued based on evidence indicating that she had been married to [redacted] in 1944 in the Republic of the Philippines. 5. The appellant's September 1965 marriage to the veteran was not valid. CONCLUSION OF LAW Since the appellant was not the lawful spouse of the veteran at the time of his death, she is not entitled to VA death benefits as surviving spouse of the veteran. 38 U.S.C.A. §§ 101, 5107 (West 1991); 38 C.F.R. §§ 3.1, 3.50, 3.52 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that it has found the appellant's claim to be "well grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, the Board finds that she has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. I. Background The record reflects that, in September 1965, the appellant and veteran underwent a marriage ceremony in the Republic of the Philippines. The veteran had previously been married to [redacted] in April 1922 and that marriage had ended with her death in July 1964. The veteran died in April 1987. In October 1987, the appellant was awarded VA death benefits as surviving spouse of the veteran. In a March 1989 statement, an individual indicated that the appellant could not be the widow of the veteran since her first husband, [redacted], was alive and residing in Zamboanga City. A VA field examination report, dated in July 1989, reflects a deposition of the appellant. She indicated that she had been ceremonially or legally married twice in her lifetime. She stated that her first marriage was to [redacted] in 1944 at a church in Zamboanga City. She indicated that they had had five children born from 1945 to about 1950. She indicated that, sometime in 1950, she and [redacted] had discontinued their marital relationship and had gone their separate ways. She stated that she had later had a live-in marital type of relationship without the benefit of marriage with a businessman whom she had met in 1951 and that they had had four children. She stated that they had separated in 1958. The appellant further related that she had met the veteran in 1964 and that they had been married in September 1965 in Zamboanga City. She indicated that she had felt it better not to mention her prior marriage to the veteran since the main reason she had gotten married during the Japanese occupation was because of her father's advice that single women at that time were endangered by the Japanese soldiers. She stated that she thought her marriage to the veteran was valid because of the circumstances of her prior marriage to [redacted]. The appellant indicated that she had not continued a relationship with [redacted] after their separation in 1950, but had heard that he had his own family and was alive. She stated that she had no documentary evidence of her marriage to [redacted]. The field examiner obtained certificates from the local civil registrar for the City of Zamboanga, indicating that a copy of the marriage certificate between [redacted] and the appellant could not be obtained since all of the pre-war records had been completely destroyed. In a letter dated in April 1991, the appellant indicated that at the time it was performed she believed the marriage ceremony between [redacted] and herself was valid. A May 1991 affidavit by [redacted] and [redacted] was to the effect that, during World War II, the parents of young girls had been apprehensive regarding the Japanese soldiers because they committed many abuses especially when they were aware that the young girl was not married. They indicated that the parents of the appellant had been afraid that the Japanese soldiers might assault their daughter so they decided to have a fake marriage of their daughter to [redacted] in order to avoid or prevent any abuses that the Japanese soldiers might commit against their daughter. A September 1991 statement by [redacted], a son of the deceased veteran, reflected that the veteran had been cared for and comforted for almost 22 years by his second wife, the appellant. He related that they had always considered the appellant as the legal wife of their father because their marriage had been solemnized in church and had also been registered with the City Civil Registrar of Zamboanga. In a statement by the appellant, received in 1991, it was indicated that her parents had given their grudging consent for her to be the live-in or common-law wife of [redacted] in order to save her from being forcibly abducted and attacked by the Japanese soldiers who were then conducting terroristic activities in their locality during the occupation of the Philippines. She stated that there had been no valid marriage ceremony performed by any authorized official or clergyman between herself and [redacted]. She stated that the abnormal situation compelled many parents of young teenagers like herself to permit their daughters to be the live-in partners or common-law wives of unmarried men during the Japanese occupation since the Japanese spared married women from sexual assaults or molestation. The appellant also submitted a joint statement by several individuals in October 1992 to the effect that the appellant and veteran had had a true civil and religious marriage performed in 1965, and that the appellant's long service to the veteran had been very meritorious and involved much self-sacrifice. The individuals felt that the appellant deserved to be granted benefits by the United States Government. II. Analysis To be entitled to VA death benefits as a "surviving spouse" of a veteran, the claimant must have been the veteran's spouse at the time of the veteran's death and have lived continuously with the veteran from the date of their marriage to the date of the veteran's death, except where there was a separation due to the misconduct of, or procured by, the veteran without the fault of the spouse. 38 U.S.C.A. § 101(3). The term "spouse" means a person of the opposite sex who is a wife or husband. The term "wife" means a person whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j). 38 C.F.R. § 3.50(a)(c). "Marriage" means a marriage valid under the law of the place where the parties resided at the time of marriage or the law of the place where the parties resided when the rights to benefits accrued. 38 U.S.C.A. § 103; 38 C.F.R. § 3.1(j). In this particular case, the evidence reflects that the appellant and veteran underwent a marriage ceremony in September 1965 in the Republic of the Philippines. They resided together until the time of the veteran's death in April 1987. A prior marriage of the veteran to [redacted] in April 1922 had terminated with her death in July 1964. However, the record discloses that the appellant had a prior marriage to [redacted] in 1944 and there is no indication that that marriage was ever terminated by divorce or otherwise. The appellant has maintained that her marriage to [redacted] was only a simulated marriage and was done in order to spare her from being sexually assaulted by Japanese soldiers who were criminally assaulting unmarried young women in Zamboanga City during the Japanese occupation of the Philippines. However, it has not been established that the marriage was due to force or intimidation, or that it was not performed in accordance with the laws of the Philippines. The record also reflects that the appellant and [redacted] did not separate until sometime in 1950 which was several years after the end of World War II and that they also had several children born after the war. Thus, it appears that the appellant was satisfied, at least to some degree, with her marital relationship with [redacted]. Although the appellant has indicated that a marriage certificate is not of record, this is explainable by the statements from local civil registrars who indicated that any such record would have been destroyed during World War II. The appellant also conceded in her July 1989 deposition before a VA field examiner that she and [redacted] had been married and she did not assert then that the marriage was invalid under the laws of the Philippines. The appellant has also maintained that her marriage to the veteran should be valid under Article 83 of the Civil Code of the Philippines since she had not known the whereabouts of [redacted] after 1950. In this regard, that article provides, in pertinent part, that a marriage subsequently contracted by a person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless (1) the first marriage was annulled or dissolved; and (2) the first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive. However, in this case, the appellant indicated at the 1989 VA field examination that she had heard that [redacted] had his own family and was still alive. Thus, the evidence does not establish that the provisions of Article 83 apply in this case and that the appellant's marriage to the veteran would be considered valid under the provisions of that article. In view of the aforementioned matters, the Board concludes that the attempted marriage of the appellant and veteran in September 1965 was not valid under the laws of the Philippines since she had a prior, subsisting marriage to [redacted]. 38 C.F.R. § 3.1(j). Thus, the appellant was not the lawful spouse of the veteran at the time of his death. The evidence, in the Board's judgment, also does not establish that the appellant and veteran established a "deemed valid" marriage under the provisions of 38 C.F.R. § 3.52 since, at the time she and the veteran underwent the marriage ceremony in September 1965, she was aware of the legal impediment to their marriage, that is, the prior, subsisting marriage to [redacted]. Thus, entitlement to VA death benefits as surviving spouse of the veteran is not warranted in this case. The Board has carefully reviewed the entire record in this case; however, the Board does not find the evidence to be so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER Entitlement to Department of Veterans Affairs death benefits as surviving spouse of the veteran is not established. The appeal is denied. WAYNE M. BRAEUER 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.