BVA9507770 
DOCKET NO.  93-14 014     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Manila,
Philippines

THE ISSUE

Entitlement to recognition as the veteran's surviving spouse.

ATTORNEY FOR THE BOARD

Michael Martin, Counsel

INTRODUCTION

The veteran had active service from October 1945 to June 1949.
He died in March 1990.

This matter came before the Board of Veterans Appeals (Board) on
appeal from an administrative decision of July 1991 by the
Department of Veterans Affairs (VA) Manila, Philippines, Regional
Office (RO).

The Board notes that the issue which was certified for appellate
review was whether new and material evidence had been presented
to reopen a claim for recognition as the veteran's surviving
spouse.  The RO determined that the July 1991 decision was final
because the appellant had not perfected an appeal of that
decision within the applicable time limit.  The Board notes,
however, that following the July 1991 decision, the appellant
submitted a letter to the RO dated in August 1991 in which she
reasserted her contention that she had a valid marriage with the
veteran and stated "May this information be served as already my
appeal..."

The Board finds that this letter constituted a notice of
disagreement within the meaning of 38 C.F.R. § 20.201 (1994).
That regulation provides that any written communication from the
claimant expressing dissatisfaction or disagreement with an
adjudicative decision and a desire to contest the result will
constitute a notice of disagreement.  Accordingly, the July 1991
decision did not become final, and the criteria relating to
finality and reopening of claims is inapplicable to the instant
appeal.  See 38 U.S.C.A. §§ 5105, 7105 (West 1991); 38 C.F.R.
§§ 3.156, 3.160 (1994).  The Board will thus review the claim on
a de novo basis.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends that the RO made a mistake by failing to
recognize her as the veteran's surviving spouse.  She asserts
that she first married the veteran in 1954.   She argues that
even though this occurred while the veteran's first spouse was
still alive, the marriage may be deemed valid since she did not
know of the existence of the first spouse at the time of the
marriage.  The appellant further contends that even if the first
marriage was void due to the fact that the veteran was already
married, she is still entitled to recognition as the veteran's
surviving spouse because she married the veteran again after the
veteran's first wife had died.  She asserts that this second
marriage occurred in December 1987.  She states that the marriage
was solemnized by a judge.  She argues that a VA field examiner
who reported that she had said that there had not been an actual
ceremony had misinterpreted her when she only meant that there
had not been a formal religious ceremony.

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 evidence supports the appellant's claim for
recognition as the veteran's surviving spouse.

FINDINGS OF FACT

1.  The veteran and the appellant were married on December 8,
1987.

2.  The appellant lived continuously with the veteran from the
date of marriage to the date of the veteran's death.

3.  The appellant has not remarried and is not living with
another person of the opposite sex and holding herself out openly
to the public as the spouse of the other person.

CONCLUSION OF LAW

The criteria for recognition of the appellant as the surviving
spouse of the veteran are met.  38 U.S.C.A. § 101 (West 1991); 38
C.F.R. §§ 3.1, 3.50, 3.205 (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The term "surviving spouse" means a person who was the lawful
spouse of the veteran at the time of the veteran's death, who
lived continuously with the veteran from the date of marriage to
the date of the veteran's death, and who has not remarried and is
not living with another person of the opposite sex and holding
himself or herself out openly to the public as the spouse of the
other person.  See 38 U.S.C.A. § 101(3) (West 1991); 38 C.F.R.
§§ 3.1(j), 3.50 (1994).  The validity of the marriage is
determined 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.  See 38
C.F.R. § 3.1(j) (1994).

The Family Code of the Philippines provides that no marriage
shall be valid unless these essential requisites are present:
(1) legal capacity of the contracting parties who must be a male
and a female; and (2) consent freely given in the presence of the
solemnizing officer.  That code further provides that the formal
requisites of marriage are (1) authority of the solemnizing
officer; (2) a valid marriage license except in certain cases
provided for in the Family Code; and (3) a marriage ceremony
which takes place with the appearance of the contracting parties
before a solemnizing officer and their personal declaration that
they take each other as husband and wife in the presence of not
less than two witnesses of legal age.  See The Family Code of the
Philippines, Title I, Chapter 1, Articles 2 and 3 (Executive
Order 209, 1987).

Many of the facts in this case are not in dispute.  The veteran
married a woman named [redacted] in January 1948.  She was confined
to a psychiatric hospital for treatment of a psychosis in June
1950, and she never again lived with the veteran after that time.

The veteran and the appellant resided together beginning in 1954.
A marriage contract dated in March 1954 shows that they underwent
a marriage ceremony on that date.  Prior to that time the
appellant had a child with another man, but there is no evidence
that she was married to that man.  The veteran's first wife,
[redacted], died in July 1978.  The appellant has stated that she did
not know that the veteran still had a living wife at the time
that she married him in March 1954.

A second marriage contract, this one dated in December 1987,
contains information which is to the effect that the veteran and
the appellant were married on December 1987 by a municipal court
judge.  The contract also includes that names of persons who
reportedly witnessed the marriage.  A certification dated in May
1990 from the office of the local civil registrar shows that the
same information is contained in the registrar of marriage.

A report of a VA field examination conducted in August 1989 shows
that the field examiner reviewed the marriage records in the
location where the marriage allegedly took place and verified
that the December 1987 certificate of marriage was authentic.
The field examiner also conducted an interview with the
appellant:

Q.  Who made the arrangements for your
wedding?

A.  All of the children of the veteran had
a meeting among themselves and it was their
decision that since I have been living with
the veteran for many years, and devoted at
that, they arrived to the conclusion that I
should legally marry the veteran.  That is
why I was married to the veteran in Sta
Maria.  It was [the veteran's son [redacted]]
who arranged all the paperwork pertaining
to our marriage.

Q.  Do you recall having signed documents
for application for a marriage license, so
with the veteran?

A.  Me and the veteran were vacationing at
Sta Maria one month prior to our marriage
and it was there that we made the
application for marriage.

Q.  Was there an actual ceremony of your
marriage with the veteran?

A.  Yes.  Since the veteran was no longer
ambulatory I was the one who went to the
municipal hall and signed marriage papers
handed to me by the Judge's secretary (a
lady).  This secretary then went to the
house of [redacted]  to obtain the thumbprint of
the veteran.  Actually we never stood
before a judge for a wedding ceremony.  It
was [[redacted]] who arranged for everything.

Q.  Can you describe the mental condition
of the veteran at the time of your
marriage?  Was he aware of what is
happening around him at the time?

A.  He seemed to know what is happening on
that particular date.  He knows the reason
why we are there.  To get married.

The field examiner concluded that this statement by the appellant
raised a question as to whether a marriage ceremony had actually
occurred.  For this reason, he recommended that additional
development be undertaken, including interviews of the veteran's
son [redacted] and the judge who was listed on the marriage
certificate as having performed the marriage ceremony.

Although the additional interviews recommended by the field
examiner were not conducted, the appellant has presented an
October 1991 joint affidavit signed by the veteran's sons [redacted]
and [redacted], which contains the following sworn statement:

That the claimant the second marriage of
our father has been witnessed by us,
personally, because we were personally
present at the time of the wedding
ceremony, in which the marriage was
solemnized by the Justice of the Peace
Court of Sta Maria, Bulacan, Philippines;

That we executed this affidavit in order to
give all the concerns, the true and actual
picture the genuity of the ceremonial
marriage between the claimant and our
father.

The Board finds that the evidence of record is sufficient to
establish that the veteran and the appellant were married on
December 8, 1987.  Under 38 C.F.R. § 3.205(a) (1994) the
existence of a marriage may be established by a copy of the
public record of marriage, certified or attested, or by an
abstract of the public record, containing sufficient data to
identify the parties, the date and place of marriage, and the
number of prior marriages by either party if shown on the
official record, issued by the officer having custody of the
record or one authorized to act for such officer bearing the seal
of such officer, or otherwise properly identified, or a certified
copy of the church record of marriage.  The copy of the marriage
contract which has been presented satisfies this requirement.
The veracity of the document was verified by the VA field
examiner.

The Board finds that the official document showing that a
ceremony did in fact occur outweighs the somewhat unclear
statement by the appellant noted in the field examiner's report
regarding whether a ceremony occurred.  A marriage contract,
being a public document required by law to be signed by the
contracting parties, its recitals that the marriage was
celebrated on a certain date can only be overcome by strong clear
conclusive evidence.  See Santos v. Bautista, 9 CAR (2s) 315.
The Board finds that the deposition of the appellant does not
meet this standard.  In response to the question of whether a
ceremony occurred, she initially responded "yes," but
subsequently indicated that one had not occurred.  This
contradiction renders the statement somewhat unclear.  For that
reason, the statement has less probative value than the marriage
contract which is consistent on its face.  This is particularly
true in light of the affidavit from the veteran's sons showing
that they witnessed the ceremony.  See also Biorgiania de
Cardenas v. Cardenas, 98 Phil. 73, in which the Supreme Court of
the Philippines held that production of a marriage certificate
attesting that a marriage ceremony was performed by a minister
therein named gives rise to the presumption that all legal
formalities required by law had been complied with and fulfilled.

The Board also notes that there is essentially no dispute that
the appellant lived continuously with the veteran from the date
of marriage to the date of the veteran's death, and that the
appellant has not remarried and is not living with another person
of the opposite sex and holding herself out openly to the public
as the spouse of the other person.  Accordingly, the Board
concludes that the criteria for recognition of the appellant as
the surviving spouse of the veteran are met.

ORDER

The appellant's claim for recognition as the surviving spouse of
the veteran is granted.

          JACQUELINE E. MONROE
          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.