Citation Nr: 0007195 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 97-32 644A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Whether the appellant should be recognized as the veteran's surviving spouse, for the purposes of receiving Department of Veterans Affairs benefits. WITNESSES AT HEARINGS ON APPEAL Appellant, M.G., and A.G. ATTORNEY FOR THE BOARD Alberto H. Zapata, Counsel INTRODUCTION The veteran served on active duty from August 1945 to December 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 1997 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which determined that the regulatory provisions covering continuous cohabitation had been satisfied by the appellee and that the appellant's marriage to the veteran was not deemed valid for VA benefits. FINDINGS OF FACT 1. In December 1953, the veteran was married to the appellee, in New Hampshire; the veteran and the appellee separated by mutual agreement and were never divorced. 2. In September 1981, the veteran was married to the appellant in Nevada; they lived together continuously in California, Massachusetts, and Nevada, until the veteran's death. 3. Both the appellant and appellee have filed claims for VA death benefits. CONCLUSION OF LAW The requirements for recognition of 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, 5107 (West 1991); 38 C.F.R. §§ 3.1, 3.50, 3.52 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pertinent facts In a January 1970 rating decision, the veteran was granted a total rating based upon individual unemployability due to service-connected disability, effective from July 1969. In a response to a VA Social Security number solicitation dated in July 1991, the veteran reported that his spouse was the appellant. This constitutes the first notice to VA that the appellant was the veteran's spouse. In a January 1994 submission, the veteran again indicated that his wife was the appellant. The first contradictory statement concerning the identity of the veteran's spouse is contained in correspondence received in March 1994 in which the veteran declared that his wife was the appellee. The veteran also reported that he maintained a legal residence in Massachusetts and that he moved to Nevada for health reasons. He then submitted a marriage certificate from the state of New Hampshire, showing that he was married to the appellee in March 1953. In a letter dated in May 1994, the veteran stated that he had separated from the appellee because she refused to care for him in his infirmity. The veteran explained that this was a mutual agreement that had not been legalized. The veteran further elaborated by saying that he considered the appellant to be a live-in companion upon whom he depends for care. In his view, there was only one marriage and that was to the appellee. A death certificate shows that the veteran died on September [redacted], 1995; the death certificate lists the appellant as the veteran's wife. The appellant filed for dependency and indemnity compensation as the surviving spouse and for burial benefits in September 1995. She submitted a marriage certificate from the State of Nevada showing that the veteran married the appellant on September 5, 1981. A copy of the veteran's last will and testament signed in July 1988 states that the veteran appointed his "wife" - the appellant - as executrix of his estate. Also, reports are of record showing that searches in Massachusetts and Nevada were negative for a divorce decree relative to the appellee and veteran. In an administrative decision issued in January 1997, the RO determined that the appellant had a marriage to the veteran that was deemed valid for VA benefits purposes, as there had been no claim filed by a legal surviving spouse. The appellee filed for dependency and indemnity compensation benefits in December 1996. In an affidavit signed in November 1995 and received in December 1996, the appellee attested to the fact that her marriage to the veteran had never been dissolved by divorce before his death. She was determined to be the veteran's surviving spouse for VA benefits purposes in the May 1997 decision on appeal. In addition to statements from both parties to this appeal, the evidence of record includes statements from acquaintances received in September 1997 who attested to their belief that the veteran had been legally divorced before he married the appellant. At her personal hearing at the RO in September 1997, the appellant testified that she was married to the veteran in Las Vegas, Nevada in September 1981 and that they were residing in California at the time. She testified that she was aware of his prior marriage and that she was of the opinion that he had been legally divorced from the appellee at the time of her marriage to the veteran. She stated that from 1981 to 1984 she lived with the veteran in California. She stated that they moved to Lawrence, Massachusetts in 1984, before moving to Nevada in 1987; they resided in Nevada until the time of the veteran's death. The appellant's sister and brother-in-law testified that they were similarly unaware of the fact that the veteran had not been divorced from the appellee. At her personal hearing before the undersigned Member of the Board, the appellant reported that she had cared for the veteran for 14 years while they lived together as husband and wife. She testified that she was responsible for terminal care of the veteran and all funeral arrangements. She testified that she was aware that the veteran was sending money to the appellee from their common funds. The appellant submitted copies of California law at her hearing. This material does not constitute evidence for which a waiver of RO consideration is required. Analysis VA death 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). 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). Board review of the applicable law of California, reveals that bigamous and polygamous marriages are void. Specifically, the California Code states: (a) A subsequent marriage contracted by a person during the life of a former husband or wife of the person, with a person other than the former husband or wife, is illegal and void from the beginning, unless: (1) The former marriage has been dissolved or adjudged a nullity before the date of the subsequent marriage. (2) The former husband or wife (i) is absent, and not known to the person to be living for the period of five successive years immediately preceding the subsequent marriage, or (ii) is generally reputed or believed by the person to be dead at the time the subsequent marriage was contracted. (b) In either of the cases described in paragraph (2) of subdivision (a), the subsequent marriage is valid until its nullity is adjudged pursuant to subdivision (b) of Section 2210. Cal Fam Code § 2201 (1999). Applicable Nevada state law provides: All marriages which are prohibited by law because of: Either of the parties having a former husband or wife then living, if solemnized within this state, are void without any decree of divorce or annulment or other legal proceedings. Nev. Rev. Stat. Ann. § 125.290 (2000). 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. All of the requirements must be met in order to find a deemed valid marriage. See, e.g., Colon v. Brown, 9 Vet. App. 104 (1996) (in cases where the veteran was still legally married to another person, if the appellant was unaware of the legal impediment, then an otherwise invalid common law marriage may be deemed valid). The requirement that there must be continuous cohabitation from the date of the marriage to the date of death of the veteran will be considered as having been met when the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. 38 C.F.R. § 3.53(a). A temporary separation will not break the continuity of the cohabitation. Id. Furthermore, the statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. 38 C.F.R. § 3.53(b). If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason which did not show an intent on the part of the surviving spouse to desert the veteran, the continuity of the cohabitation will not be considered as having been broken. Id. In this case, the appellant contends that she should be recognized as the veteran's surviving spouse because she and the veteran were formally married in September 1981, and she did not violate the continuous cohabitation rule. After analyzing the applicable state laws, the Board concludes that the appellant's marriage to the veteran was void from its inception. Given that the appellant and the veteran were residing in California at the time of their marriage and in Nevada at the time of the veteran's death, the appellant's relationship with the veteran does not meet the 38 C.F.R. § 3.1(j) definition of marriage. The Board has reviewed the material submitted by the appellant at her July 1999 hearing bearing on the state's putative spouse doctrine. While this doctrine may entitle the appellant to rights to the veteran's property under state law, the doctrine does not serve to validate her marriage to the veteran for VA benefits purposes. There is no dispute that the veteran and the appellant were married by ceremony, as evidenced by the marriage certificate, but for VA purposes she could not legally marry the veteran because he had never divorced the appellee, and the appellee was not at fault in the separation between her and the veteran. The evidence shows that it was the veteran who left the appellee and that the separation was by mutual consent related to health reasons, and there was no intent on the part of the surviving spouse to desert the veteran. The Board does note that in the veteran's own words, the appellee refused to care for him and that this precipitated their separation. However, the fact remains that it was the veteran who left the appellee and the veteran stated that they separated by mutual agreement. Moreover, the veteran reported to VA in the above-cited correspondence that he considered the appellee to be his one legal wife. The Board is of the opinion that this documentary evidence weighs against a finding that the veteran was deserted by the appellee. The Board acknowledges the many documents in the claims file authored by the veteran that list the appellant as his wife. However, in his May 1994 letter the veteran definitively stated that there was no legal dissolution of his first marriage. The appellee has also confirmed that no divorce was obtained. Based on the evidence of record, and in light of the law and regulations governing this appeal, the Board concludes that the appellant may not be recognized as the veteran's surviving spouse for VA purposes because of the prior subsisting legal marriage between the veteran and the appellee in December 1953. The Board realizes that a marriage may still be deemed valid, if certain requirements are met, in cases involving a legal impediment prior to marriage if the appellant was unaware of the legal impediment at the time of marriage. See 38 C.F.R. § 3.52; Colon, 9 Vet. App. 104. In the present case, however, because the appellee also filed a claim for VA death benefits and she is the veteran's legal surviving spouse, the appellant's marriage to the veteran cannot be deemed valid unless there is a bar to payments to the appellee as the legal surviving spouse. Here, payments to the appellee are not barred by the continuous cohabitation requirement of 38 C.F.R. § 3.53. In summary, the appellee had a legal marriage to the veteran, and was never formally divorced from the veteran. As a result, the appellant's marriage to the veteran was void under applicable state laws. The appellant has not presented evidence to overcome that legal impediment, such as evidence that would invalidate the veteran's marriage to the appellee. Therefore, the appellant may not be recognized as the veteran's surviving spouse for purposes of receiving VA benefits. ORDER The Board having determined that the appellant may not be recognized as the veteran's surviving spouse for VA purposes, the appeal is denied. SHANE A. DURKIN Member, Board of Veterans' Appeals