Citation Nr: 0005526 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 95-09 274A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Entitlement to recognition as the veteran's surviving spouse for Department of Veterans Affairs (VA) benefit purposes. ATTORNEY FOR THE BOARD N. W. Fabian, Counsel INTRODUCTION The veteran had active duty from July 1926 to September 1929 and from October 1929 to August 1935. This matter comes to the Board of Veterans' Appeals (Board) from a February 1995 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO), in which the RO determined that the appellant was not the veteran's surviving spouse for VA benefit purposes. The appellant perfected an appeal of that decision. Because there are multiple appellants claiming to be the surviving spouse of the veteran, the procedures pertaining to simultaneously contested claims are applicable. 38 C.F.R. §§ 19.100-19.102, 20.500-20.504 (1999). The Board finds that the RO has complied with the required procedures in developing the multiple appeals. FINDING OF FACT The appellant has not submitted evidence of a valid marriage to the veteran. CONCLUSION OF LAW The appellant has not attained the status of a claimant for VA benefit purposes. 38 U.S.C.A. §§ 101(3), 103(a) and (c), 1310 (West 1991); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.205 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The documents in the case file show that the veteran became entitled to VA compensation benefits in June 1936 based on his service as a Philippine Scout. A certified copy of the marriage contract shows that in February 1937 he married a woman whose initials are L.M.A. During World War II he apparently fought with a civilian guerrilla unit in the Philippines, following the Japanese invasion in April 1942, and after the war his compensation benefits were reinstated. In his January 1946 application to have his compensation benefits reinstated, he stated that L.M.A. was living with another man. During a March 1948 VA examination the veteran reported having married his cousin's widow, who had 13 children. They lived on a small farm in the Batangas Province. In an April 1963 affidavit the veteran stated that he had been ceremonially married only once, to L.M.A., and that he and his wife had separated in 1943. He also stated that he was currently living in a husband and wife relationship with the appellant. In April 1974 the appellant applied for an apportionment of the veteran's compensation benefits, at which time she described herself as the common-law wife of the veteran. She was told that as his common-law wife, she was not eligible for an apportionment. In August 1974 the appellant submitted a copy of an agreement between herself and the veteran in which the veteran agreed to provide her with an allowance of 500 pesos per month. The agreement was prepared under the auspices of the Public Assistance Office, and was submitted to the RO by the Public Assistance Office, apparently for the purpose of obtaining a garnishment of the veteran's compensation benefits. The report of an August 1982 VA social and industrial survey indicates that the veteran had been living in a common law relationship with the appellant's adopted daughter for eight years. The veteran also reported that he was married to a woman other than the appellant or her daughter, but that the appellant had cared for him when he was discharged from the hospital with tuberculosis. The evidence indicates that the veteran died in August 1993, and that the appellant claimed entitlement to DIC benefits in January 1994. She listed no marriages other than the marriage to the veteran, and stated that she could not remember the date she and the veteran were married. In March 1994 the RO asked her to provide a copy of her marriage certificate to the veteran, and a detailed explanation of the cause and date of her separation from him. She provided certificates showing that verification of the marriage, which purportedly occurred in March 1941, could not be provided because those records had been destroyed during the liberation of Manila in 1945. In a statement received in February 1995 the appellant stated that she and the veteran married in 1941, that he left her to fight the Japanese during World War II, and that they resumed living together immediately after the war. She stated that they had no children, so they adopted a daughter, whom the veteran subsequently married. She also stated that in 1974 the adopted daughter forcibly took the veteran from her home so that she could control his compensation benefits, but that the veteran continued to visit her regularly after his marriage to the adopted daughter. In her April 1995 notice of disagreement the appellant claimed that the veteran's marriage to L.M.A. was not valid because L.M.A. had abandoned him and lived with another man. She also stated that the veteran, believing his first wife to be dead, married her in April 1941 before a municipal judge, but that he did not disclose the existence of his first wife for the 48 years that they lived together as husband and wife. She further stated that he left her during the war to fight, but that he returned to live with her when the war was over. She claimed that under the Philippine Civil Code her marriage to the veteran was valid because she entered into the marriage in good faith, without knowledge of the impediment. In an October 1995 statement the appellant stated that she and the veteran were married by a municipal judge in April 1944, and she submitted a certification showing that marriage records for that period of time were not available because they had been destroyed during the war. She also stated that L.M.A. had abandoned the veteran in 1937 and had been missing for seven years when she and the veteran married in 1944. She again stated that the veteran had not told her of his prior marriage until 1989. She claimed that her marriage to the veteran should be recognized because she married him without knowledge of an impediment, and because she lived with him as husband and wife from 1944 until his death in August 1993. II. Analysis Dependency and indemnity compensation (DIC) is payable to the veteran's surviving spouse if the veteran died of a service- connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5. A surviving spouse is defined as a person of the opposite sex who was the spouse of a veteran at the time of his death and who lived with the veteran continuously from the date of marriage to the date of the veteran's death. The surviving spouse will have been found to have continuously cohabited with the veteran if any separation was due to the misconduct of, or procured by, the veteran without the fault of the spouse, if the spouse has not remarried or has not since the death of the veteran lived with another person and held herself out openly to the public to be the spouse of such other person. 38 U.S.C.A. § 101(3), 38 C.F.R. § 3.50. A claimant qualifies as a spouse of the veteran if she was validly married to the veteran. 38 C.F.R. § 3.50. In determining whether the marriage is valid, 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 right to benefits accrued, will be applied. 38 C.F.R. § 3.1(j). Where an attempted marriage of a claimant to the veteran was invalid due to a legal impediment, the marriage will nevertheless be deemed valid if 1) the marriage occurred one year or more prior to the veteran's death; 2) the claimant entered into the marriage without knowledge of the impediment; 3) the claimant cohabited with the veteran continuously from the date of marriage to the date of death; and 4) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits. 38 U.S.C.A. § 103; 38 C.F.R. § 3.52. Marriage is established by one of the following types of evidence; 1) an abstract of the public record of marriage; 2) an affidavit of the clergyman or magistrate who officiated; 3) the original certificate of marriage; 4) the affidavits or certified statements of two or more eyewitnesses to the ceremony. In jurisdictions where marriages other than by ceremony are recognized, the marriage may be proven by the affidavits by one or both parties to the marriage, setting forth all of the facts concerning the alleged marriage, and the affidavits of two or more persons who know by personal observation the reputed relationship that existed between the parties. In addition, any other secondary evidence which reasonably supports a belief by the adjudicating activity that a valid marriage actually occurred. 38 C.F.R. § 3.205. Because the veteran and the appellant resided in the Philippines the appellant's right to benefits, if any, accrued, Philippine law applies in determining whether there was a valid marriage. See Brillo v. Brown, 7 Vet. App. 102, 105 (1994). Philippine Law does not recognize common law marriages. A man and woman not legally married who cohabit for many years as husband and wife, who represent themselves to the public as husband and wife, and who are reputed to be husband and wife in the community where they live may be considered legally "married" in common law jurisdictions but not in the Philippines. Euginio v. Alejandro et al, 1990 Philippine S. Ct. LEXIS 6634 The Civil Code of the Philippines provides as follows: Art. 80. The following marriages shall be void from the beginning: (2) Those solemnized by any person not legally authorized to perform marriages; (3) Those solemnized without a marriage license, save marriages of exceptional character; Art. 83 Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other that such first spouse shall be illegal and void from its performance, unless: (1) the first marriage was annulled or dissolved; or (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, or if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead . . . . The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court. Badua v. Brown, 5 Vet. App. 472, 474 (1993). The presumption of death provision set out in 38 U.S.C.A. § 108 (West 1991) provides: (a) No State law providing for presumption of death shall be applicable to claims for benefits under laws administered by the Secretary. (b) If evidence satisfactory to the Secretary is submitted establishing the continued and unexplained absence of any individual from that individual's home and family for seven or more years, and establishing that after diligent search no evidence of that individual's existence after the date of disappearance has been found or received, the death of such individual as of the date of the expiration of such period shall be considered as sufficiently proved. As a threshold matter, an individual claiming entitlement to DIC benefits has the burden of coming forward with evidence showing that she was validly married to the veteran. If this burden is not met, she never attains the status of a "claimant," and VA is not obliged to determine whether the claim is well grounded and has no duty to assist her in developing the claim. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991); see also Dedicatoria v. Brown, 8 Vet. App. 441, 445 (1995) (an individual claiming entitlement to DIC benefits does not meet the threshold requirement of claimant status in the absence of evidence showing that her marriage to the veteran was valid). The appellant has not submitted any evidence, other than her own statements, showing that she and the veteran were ceremonially married at any point in time. She did provide certifications showing that the official marriage records for the time periods during which she and the veteran were purportedly married were not available. The evidence in the case file indicates that the veteran and the appellant cohabited for a number of years, but the appellant has not provided any evidence showing that she and the veteran had established a common law marriage. She has not asserted that they intended to enter into such a marriage. Even if they had attempted to enter into such a marriage, and were unaware of the legal impediment to such marriages under Philippine Law, the evidence indicates, contrary to her assertions, that from at least 1973 the veteran lived with the appellant's daughter, not the appellant. Therefore the appellant did not satisfy the requirement for a deemed valid marriage that she cohabit with the veteran until the time of his death. In the absence of evidence showing that the appellant had a valid marriage to the veteran, she has not attained the status of a "claimant" for VA benefit purposes, and her appeal to establish recognition as the veteran's surviving spouse is denied. Aguilar, 2 Vet. App. at 23. ORDER The appeal to establish to recognition as the veteran's surviving spouse for VA benefit purposes is denied. Mark D. Hindin Member, Board of Veterans' Appeals