Citation Nr: 0006927 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-15 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Whether the appellant may be recognized as the veteran's surviving spouse for the purpose of entitlement to Department of Veterans Affairs benefits. REPRESENTATION Appellant represented by: Rolando Borlaza, Agent WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD N. L. Rippel, Associate Counsel INTRODUCTION The veteran had service from April 1946 to April 1949. He died in January 1994. This appeal is before the Board of Veterans' Appeals (Board) from a determination of the Manila, Philippines, Department of Veterans Affairs (VA) Regional Office (RO). In response to the appellant's request for a travel Board hearing, the Board remanded the case to the RO in January 1999. In June 1999, the undersigned Board member conducted a hearing with appellant in Manila, and the case has been returned to the Board for a decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The veteran was married to [redacted] from 1931 until her death in 1945; he married [redacted] 1955 in the Philippines, and that marriage was not terminated until her death in 1982. 3. The veteran and the appellant underwent a civil marriage ceremony in June 1979 in the Philippines. 4. The appellant's marriage was invalid under Philippine law at the time of marriage ceremony. 5. The appellant had knowledge of the legal impediment to marriage with the veteran prior the 1979 marriage ceremony. CONCLUSION OF LAW The appellant may not be recognized as the surviving spouse of the veteran for purposes of VA benefits. 38 U.S.C.A. §§ 101(3), 103(a), 5107(a) (West 1991); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.205 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant alleges that she is the surviving spouse of the veteran for VA purposes . She has contended, both in writing as well as in her June 1999 testimony, that she should be so recognized because she lived with the veteran from 1958 to the time of his death in 1994, had seven children with him, and in fact married him in 1979. The veteran indicated on a 1973 VA Application for Compensation or Pension Benefits that he had been married once, to [redacted], from November 1931 until her death in December 1945. No official death certificate has been located, but affidavits from former neighbors of [redacted] confirm her death due to illness. It has been suggested that the death was not recorded because of the confusion at the end of the war. The veteran stated in connection with a VA claim in August 1974 that was legally married to [redacted], but separated for more than 18 years and that he was not legally married to the appellant. In a May 1983 affidavit, the veteran stated that [redacted] abandoned him the day after they had been married in a church, stopping temporarily at the home of her uncle and rebuffing the veteran's vain attempt at reconciliation before leaving the Philippines for the United States, where she lived until her death in 1982. It has been reported by the appellant that [redacted] sued the veteran for support in or about 1979. A marriage certificate confirms that the veteran married [redacted] in September 1955 in the Philippines. A death certificate confirms that she died in August 1982 in California, and lists her marital status as never married. There is no evidence that [redacted]'s 1955 marriage to the veteran in the Philippines was legally dissolved prior to her death. Prior to his death, the veteran indicated that he had no children with either [redacted] or [redacted]. He also indicated that he had seven children with the appellant. The appellant has stated that she first met the veteran in 1958, following his separation from [redacted]. At that time, she had recently ended a two-year relationship with another individual that produced one daughter. She was approximately 20 years old and the veteran was age 50. She accepted him as a suitor and decided to stay with him because he had promised to care for her as well as her child. They began living together and ultimately had seven children. They had a marriage ceremony in June 1979 after all of the children were born. The appellant has offered several reasons why the marriage to the veteran did not take place until 1979. First, she noted that both she and the veteran believed that the marriage would not be legal because of the veteran's marriage to [redacted]. The appellant also noted that the veteran finally won a court battle in which it was determined that he did not have to support [redacted]. Considering these factors, and considering that they had seven children, the veteran and the appellant decided that it would be good to finally get married. A VA field investigation was conducted by the RO to ascertain additional information to process the appellant's claim. Affidavits from villagers who knew the principals in this case tend to confirm that the veteran was married to [redacted] for a brief period years ago, and that he had lived for years with the appellant and had had many children with her. On his 1973 application for VA benefits, that the veteran listed only his 1931 marriage to [redacted] and three of his children with the appellant. He stated that that he was presently not married. The term surviving spouse means a person of the opposite sex who was the spouse of a veteran at the time of the veteran's death, and who lived with the veteran continuously from the date of marriage to the date of the veteran's death and who has not remarried. 38 U.S.C.A. § 101(3) (West 1991); see also 38 C.F.R. § 3.50 (1999). The regulations also define the term spouse as a person of the opposite sex whose marriage meets the requirements of § 3.1(j), and the term surviving spouse as a person of the opposite sex whose marriage meets the requirements of § 3.1(j), and who was the spouse of the veteran at the time of the veteran's death. 38 C.F.R. § 3.50(c) (1999). Section 3.1(j) defines marriage to mean 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 right to benefits accrued. Proof of a marriage may be shown by a copy of the public record, an affidavit of the clergyman or magistrate who officiated, an original certificate of marriage or affidavits or certified statements of two or more eyewitnesses to the ceremony. 38 C.F.R. § 3.205 (1999). Where an attempted marriage of a claimant to the veteran was invalid by reason of a legal impediment, the marriage will nevertheless be deemed valid if: (a) The marriage occurred 1 year or more before the veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage (see § 3.54(d)), and (b) The claimant entered into the marriage without knowledge of the impediment, and (c) The claimant cohabited with the veteran continuously from the date of marriage to the date of his or her death as outlined in § 3.53, and (d) No claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the veteran's death. See 38 C.F.R. § 3.52 (1999). VA is not obliged to determine whether a claim for spousal benefits is well grounded until the veteran or the spouse seeking benefits first submits preponderating evidence to show that he or she is a claimant under the law. Dedicatoria v. Brown, 8 Vet. App. 441, 443 (1995) (citing Brillo v. Brown, 7 Vet. App. 102, 105 (1994); Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991)). In this case, the appellant has not achieved the status of a appellant under the law in light of the evidence of record which shows that her purported marriage to the veteran was invalid at the time of his death. The veteran had been married twice prior to his marriage to the appellant in June 1979. Although his first marriage had been terminated by the death of [redacted] in 1945, the record at the time of the 1979 marriage ceremony involving the appellant and the veteran does not show that the veteran's 1955 marriage to [redacted], his second wife, had been terminated by reason of death or final decree of divorce or annulment. See 38 C.F.R. § 3.2059(b) (stating the standard for proof for establishing termination of a prior marriage). In fact, it has been stated that the veteran and the appellant felt more inclined to marry in June 1979 in part because the veteran had just won a lawsuit in which [redacted] had tried to establish entitlement to support from the veteran based on their marriage. VA regulations define marriage as a marriage valid under the law of the place where the parties resided at the time of marriage. See 38 C.F.R. § 3.1(j). The controlling law, Article 83 of the Philippine Civil Code, provides that: Any marriage subsequently contracted by any 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; 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. Dedicatoria v. Brown, 8 Vet. App. 441, 444 (1995). The Board finds, that by the very terms of the law of the Philippines, the marriage of the veteran to the appellant for VA purposes is null and void. The evidence of record shows that the veteran's second marriage preceded the date of his marriage to the appellant. The evidence of record does not contain any documents which establish that the veteran's marriage to [redacted] had been dissolved. Further, the record shows that the appellant and the veteran had knowledge of the first wife, Ascension, being alive, as by their admission she was suing the veteran for support. According to the VA field investigator's report, it was commonly known that the veteran and the appellant had been together many years, had many children together, and held themselves out as husband and wife. Although the Board does not question the veracity of the appellant's claim as to these matters, their marriage remains invalid under Filipino law for VA purposes due to the veteran's prior subsisting marriage to [redacted]. Further, searches of the usual civil and church registries for record of a subsequent marriage were fruitless, despite assertions that the veteran and the appellant married in 1982. The record also shows that the appellant has generally not denied that the veteran was married to [redacted], that the marriage was never legally terminated during [redacted]'s lifetime, or that she knew that the veteran had a prior subsisting marriage while she and the veteran were together for many years. Instead, the crux of her argument for recognition as a surviving spouse is that since she and the veteran had a faithful, common-law marriage for 26 years prior to 1979, and since [redacted] had abandoned the veteran long before that, and since appellant and the veteran had been together all that time and had seven children, they had effectively removed any impediment to marriage. Further, they felt that the failure of [redacted] to win support from the veteran presented additional reason to believe the marriage was effectively dissolved and their 1979 marriage was valid or should be deemed valid. Based upon the evidence of record, however, the appellant's marriage to the veteran for VA purposes was null and void under Philippine law because his marriage to [redacted] had not been terminated by death, annulment or dissolution. Moreover, the veteran and the appellant knew that [redacted] was still alive because she had recently sued the veteran for support. Because the law of the place of marriage controls the validity of a marriage under VA regulation, the Board concludes that the appellant's marriage to the veteran is invalid for VA purposes. Notwithstanding that the marriage of the appellant to the veteran is invalid by reason of a legal impediment, an attempted marriage by the appellant may be deemed valid if each of the four requirements under 38 C.F.R. § 3.52 are met. Without deciding whether the remaining criteria have been met, the Board finds that the appellant entered into marriage with knowledge of the legal impediment. Here, the appellant had knowledge of the veteran's marriage to [redacted] prior to her marriage with the veteran in June 1979. The appellant stated at various times that she had known of [redacted]. The issue here is whether the veteran and the appellant thought that the circumstances surrounding their marriage, that is, the successful defense of the lawsuit, the absence of [redacted] for all those years, and their years living together removed the impediment to their marriage. The Board cannot find that this is the case. The appellant has not shown any documents or other persuasive evidence that suggest she had reason to believe that any impediment to her marriage to the veteran had been removed in 1979. She had indicated that the reason she and the veteran never married was because [redacted] was still married to the veteran. Further, the record shows that children of the veteran were instructed at one point that they were to contact [redacted]'s family in the event of his death. The facts do not suggest that they thought [redacted] had died in 1979 or that she had otherwise terminated the marriage. The Court has construed 38 C.F.R. § 3.52(b) to require that the determination of an appellant's knowledge with respect to the legal impediment must be viewed in terms of what the appellant's state of mind was at the time that the invalid marriage was contracted. Dedicatoria, 8 Vet. App. at 444. The appellant has repeatedly stated that she had been informed of the veteran's prior marriage, and she had not for many years prior to her marriage doubted the veteran's marital status. The available evidence of record does not show that the veteran's first marriage was terminated until she died in 1982. Given these facts, the Board finds that the appellant's state of mind at the time of marriage indicates that she was aware of the veteran's prior marriage and that the marriage had not been legally terminated. Thus, the Board finds that the appellant's marriage to the veteran may not be deemed valid because the appellant had knowledge of the legal impediment prior to entering into marriage with the veteran. Because she has not attained the status of a claimant, the appellant is not entitled to VA's assistance in the development of facts pertinent to her claim. Dedicatoria, 8 Vet. App. at 445. The Board also notes that the VA field examinations included a written statement of the appellant which complies with any duty that the appellant provide a signed statement as to her knowledge of any legal impediment to her marriage to the veteran as provided in 38 C.F.R. § 3.205(c). See Colon v. Brown, 9 Vet. App. 104, 108 (1996) (citing Sandoval v. Brown, 7 Vet. App. 7, 10 (1994). The Travel Board hearing by the undersigned also provided that appellant with an opportunity to explain the circumstances of her marriage. ORDER The appellant may not be recognized as the veteran's surviving spouse for the purpose of entitlement to VA benefits; thus, the appeal is denied. CHARLES E. HOGEBOOM Member, Board of Veterans' Appeals