Citation Nr: 0007851 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-09 020 ) 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 purposes of receiving Department of Veterans Affairs (VA) benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Helinski, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 1998 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines, which determined that the appellant could not be recognized as the veteran's surviving spouse for purposes of receiving VA death pension benefits. The veteran had active military service from March 1927 to May 1948. He was a prisoner of war of the Japanese government for several months during 1942. He died on November [redacted], 1996. FINDINGS OF FACT 1. On November 11, 1996, the veteran and the appellant were married by a marriage ceremony in Cabangan, Zambales, Philippines. 2. On November [redacted], 1996, the veteran died. 3. The parties were not legally married for one year prior to the veteran's death, and they did not bear children together. 4. Common law marriage is not recognized in the Philippines. CONCLUSION OF LAW The requirements for recognizing the appellant as the veteran's surviving spouse for purposes of receiving VA benefits, have not been met. 38 U.S.C.A. §§ 103(c), 1102, 5017 (West 1991); 38 C.F.R. §§ 3.1, 3.50, 3.52 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION This appeal arises out of the appellant's claim that she should be recognized as the veteran's surviving spouse for purposes of receiving VA death benefits. In a March 1998 Administrative Decision, the RO determined that the appellant was not entitled to recognition as the veteran's surviving spouse for purposes of receiving VA death benefits. The appellant disagreed with that decision and initiated this appeal. As a preliminary matter, the Board finds that the appellant has attained the status as a "claimant," in that the record contains certification of her marriage to the veteran. See Colon v. Brown, 9 Vet. App. 104, 107 (1996) (citing Sandoval v. Brown, 7 Vet. App. 7, 9 (1994) and Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991)). Thus, the Board will proceed with this appeal. A brief history of this claim is summarized as follows. In June 1929, the veteran was married to his first wife, [redacted]. They had four children together. She later died in August 1986. The veteran was in receipt of nonservice- connected disability pension benefits for a number of years, including additional benefits on account of the need for aid and attendance of another person from October 1994. In February 1992, the veteran had submitted a statement to the RO indicating that it was very had living alone death of his first wife, so he decided to "get a live-in partner (not legally married)." He stated: "I decided not to be legally married to my second wife in order that my military pension will not be transferred to anybody, hence, in case of my death it is a savings on the part of the US government." In January 1997, the RO was informed that the veteran had died on November [redacted], 1996. In March 1997, the appellant submitted an "Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse." Evidence in the veteran's claims file reveals that the veteran and the appellant were formally married on November 11, 1996; the veteran died shortly thereafter of a heart attack after attending a dance party. Attached to the parties' marriage certificate is an Affidavit On Marriage Between Man and Woman Who Have Lived Together as Husband and Wife for at Least Five Years. Under Philippine law, Article 34, New Family Code, such an affidavit substitutes the requirement for a marriage license. The appellant contends that she and the veteran lived together as husband and wife for eight years prior to the marriage ceremony, but that they delayed a formal marriage to await consent of the veteran's children. In short, the appellant maintains that she should be recognized as the veteran's surviving spouse. In November 1997, the RO conducted a Field Examination in this case. Two clerks at the Office of the Local Civil Registar (LCR), Cabangan, Zambales, Philippines, where the parties were married, indicated that they personally knew the parties and confirmed that they had lived together as husband and wife for more than five years. It was noted that there was no legal impediment to the marriage, in that both parties were widowed, but it took years before the veteran's children allowed the veteran to marry the appellant. Interviews with the veteran's children revealed that the veteran and the appellant started living together as husband and wife one year after the death of the veteran's first wife. Apparently, two of the children strongly opposed the marriage out of fear that the veteran's property would be transferred to the appellant upon his death. The children finally all gave their blessing to the marriage. Neighbors stated that they viewed the parties as legally married due to their faithful and harmonious relationship, and the lack of legal impediments, since they were both widowed. In October 1997, the appellant's deposition was taken in connection with the VA field investigation. She indicated that she did not consider the veteran her legal spouse prior to the marriage ceremony, as they were not yet married. She stated that her cohabitation was not enough to make the marriage legal, which was why they had the ceremony. She also stated that they did not immediately marry due to the veteran's children's opposition of the marriage. More recently, in June 1999, the appellant testified at a hearing before the undersigned Member of the Board, and essentially reiterated her contentions already of record. VA death pension benefits may be paid to a surviving spouse who was married to the veteran: (1) one year or more prior to the veteran's death, or (2) for any period of time if a child was born of the marriage, or was born to them before the marriage. 38 C.F.R. § 3.54 (1999); see 38 U.S.C.A. § 1102 (West 1991). A spouse means a person of the opposite sex who is a wife or husband and the term surviving spouse means a person of the opposite sex who is a widow or widower provided the marriage meets the requirements of 38 C.F.R. § 3.1(j). 38 C.F.R. § 3.50. 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); see 38 U.S.C.A. § 103(c). The Board has reviewed all the evidence of record, in light of the pertinent laws and regulations. However, as will be explained, the Board finds no legal basis to recognize the appellant as the veteran's surviving spouse. Since common law marriage is not recognized in the Philippines, the parties were not legally married prior to the marriage ceremony in November 1996. Clearly, since the veteran died a few days later, the appellant was not formally married to the veteran for one year prior to his death and no children were born of the relationship. 38 C.F.R. § 3.54; see 38 U.S.C.A. § 1102. Nevertheless, in cases where there is a legal impediment to entering into a marriage, such as if common law marriage is not recognized in a jurisdiction, if the appellant was unaware of the impediment an otherwise invalid common law marriage could be deemed valid. Colon v. Brown, 9 Vet. App. 104, 107-108 (1996); see VAOPGCPREC 58-91 (July 7, 1991) (the fact that a jurisdiction does not recognize common law marriage is considered a type of legal impediment). Under 38 U.S.C.A. § 103(a) and 38 C.F.R. § 3.52, 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: (1) 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); (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 his or her death; and (4) 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. The evidence, however, does not support a deemed valid marriage in this case. Significantly, the appellant testified in her deposition in October 1997 that she did not consider the veteran her legal spouse prior to the marriage ceremony because they were not yet married. Additionally, she conceded that her cohabitation with the veteran was not enough to make their marriage legal, which is why they had the marriage ceremony. This is consistent with the veteran's statement in 1992 that he and the appellant were not legally married. In short, the appellant does not contend, nor does the evidence reflect otherwise, that she was unaware that common law marriages were not recognized in the Philippines. Rather, she concedes that the marriage was only legal after the marriage ceremony. As such, the appellant's argument essentially is based on the fact that although she was only legally married to the veteran for a few days, she should be considered the veteran's surviving spouse for VA purposes due to her lengthy relationship with the veteran, during which they lived together as husband and wife. The Board acknowledges the appellant's contentions, and it is apparent that the parties resided as husband and wife for a number of years prior to their legal marriage ceremony. However, as discussed, since the veteran died so soon after the marriage and no children born of their relationship, the appellant does not meet the criteria necessary for establishing status as a surviving spouse for VA purposes. As such, the appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (in the absence of legal merit, the appeal must be denied based on a lack of entitlement under the law). ORDER The appellant may not be recognized as the veteran's surviving spouse for purposes of receiving VA death pension benefits. CHARLES E. HOGEBOOM Member, Board of Veterans' Appeals