Citation Nr: 0002624 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 98-03 685A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to recognition as the veteran's surviving spouse for the purpose of reinstating Department of Veterans Affairs death pension benefits. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and her neighbors ATTORNEY FOR THE BOARD L. J. Nottle, Counsel INTRODUCTION The veteran served on active duty from October 1943 to July 1944, and from July 1945 to December 1945. He died on November [redacted], 1974. The appellant is his widow. Her claim comes before the Board of Veterans' Appeals (Board) on appeal from a June 1993 determination of the Department of Veterans Affairs (VA) Regional Office in New York, New York (RO). FINDINGS OF FACT 1. In September 1939, the veteran and appellant entered into a ceremonious marriage. The veteran and appellant lived together until the veteran's death except during separations procured by the veteran without the fault of the appellant. 2. After the veteran's death, the appellant was awarded death pension benefits, which were terminated, effective November 1980, when the RO learned that the appellant had remarried. 3. The appellant and W.P. lived together from 1980 until 1992, but their marriage was void. 4. The appellant stopped holding herself out openly to the public as W.P.'s spouse prior to November 1, 1990. CONCLUSION OF LAW The appellant is entitled to recognition as the veteran's surviving spouse for the purpose of reinstating Department of Veterans Affairs death pension benefits. 38 U.S.C.A. § 101(3) (West 1991); 38 C.F.R. §§ 3.1(j), 3.50(b), 3.55(a), 3.215 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that her entitlement to death pension benefits should be reinstated to 1980 based on her status as the veteran's surviving spouse. She claims that although she remarried in 1990 to W.P., that marriage was later determined to be void, and she stopped holding herself out as being the spouse of W.P. prior to November 1, 1990. VA regulations provide that except as indicated in Section 3.52, a "surviving spouse" means a person of the opposite sex whose marriage to the veteran meets the requirements of Sec. 3.1(j) and who was the spouse of the veteran at the time of the veteran's death and (1) who lived with the veteran continuously from the date of marriage to the date of the veteran's death except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse; and (2) except as provided in Sec. 3.55, has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50 (1999). The record in this case contains a marriage certificate reflecting that the veteran and appellant entered into a ceremonious marriage in September 1939 in Birmingham, Alabama. According to the veteran's death certificate, the appellant was the veteran's surviving spouse when the veteran died in November 1974. In an application for Dependency and Indemnity Compensation (DIC) benefits received in December 1974 and in written statements received from the appellant after the veteran's death, the appellant indicated that she and the veteran lived intermittently together from the date of their marriage to the date of the veteran's death. She further indicated that during their marriage, the veteran would leave her for other women and then would return on occasion. She indicated that at one point, she initiated, but did not follow through in obtaining a divorce. Based on this information, which shows that the marriage separations were procured by the veteran without the appellant's fault, the RO determined that the appellant was entitled to death pension benefits, effective November 1974. The appellant continued to receive death pension benefits until she informed the RO that she had remarried in December 1980. At that time, the RO terminated her benefits, effective the date of the remarriage. Remarriage of a surviving spouse does not bar the furnishing of benefits to a surviving spouse if the marriage was void. 38 C.F.R. § 3.55(a)(1)(ii). Benefits may be resumed to an unmarried surviving spouse upon the filing of satisfactory evidence showing that, on or after January 1, 1971, a surviving spouse who lived with another person and held herself out openly to the public as the spouse of such other person, or who engaged in conduct that created an inference or presumption of remarriage, terminated the relationship prior to November 1, 1990. 38 C.F.R. §§ 3.55(4),(6). Such evidence may consist of, but is not limited to, the surviving spouse's certified statement of the fact. 38 C.F.R. § 3.215. In this case, a certificate of marriage reflects that the appellant and W.P. married in Brooklyn, New York in November 1980. However, the appellant has submitted evidence establishing that her 1980 marriage to W.P. was void. In a written statement dated March 1992, she indicated that in July 1991, she realized that W.P. married A.G., another woman, in 1957 and never divorced her. She further indicated that she had known about the prior marriage, but believed that that marriage had been terminated by divorce. Attached to the appellant's statement is a marriage certificate confirming W.P's marriage to A.G. in 1957. In May 1993, the RO wrote the appellant and requested that she provide proof that her remarriage to W.P. was invalid. In response to this request, the appellant submitted a document indicating that in 1990 a friend of the appellant had applied to the State of Florida Department of Health and Rehabilitative Services for a copy of a certificate of divorce between W.G. and A.G. She also submitted a document showing that in 1991, the same friend had applied to the New York State Department of Health for a search of records of W.P.'s divorce to A.G. In her application, the friend indicated that the search should cover the period 1971 to 1990. The State of New York responded that a diligent search had been made for the dissolution of marriage record of W.P. and A.G., and that it had searched records dated from 1963 to 1990, but no record had been found. In January 1996, in response to a request for a legal opinion from the RO, the Office of Regional Counsel of the VA wrote that W.P. had married twice prior to marrying the appellant, in 1944 and 1957, and that there was no indication that he had divorced either wife. In fact, A.G. was listed as W.P.'s wife on his death announcement in December 1996. In light of the aforementioned evidence it is clear that the appellant's marriage to W. P. was void. The question thus becomes whether the appellant held herself out openly to the public as the spouse of W.P. on and after November 1, 1990. In a statement dated May 1993, the appellant admitted that she and W.P. did not separate until October 1992. However, at a hearing held at the RO in August 1995, the appellant testified that she allowed W.P. to remain living with her until 1992 because W.P. had nowhere else to live. Allegedly, in 1989, she told housing authorities that she was separated from W.P. and requested a housing application so that she could move out of the apartment she shared with W.P. She filled out the application, which was denied by the landlord on the basis that W.P. could not use the appellant's participating number and needed to find his own place. Thereafter, she helped W.P. apply for his own housing, which he did not succeed in obtaining until October 1992. According to evidence submitted by the appellant, from 1989, when the appellant and W.P. allegedly separated, and October 1992, when W.P. moved out, the appellant did not hold herself out to the public as W.P.'s wife. B.F., the appellant's neighbor, testified at the August 1995 hearing that she became aware that the appellant and W.P. were having problems in 1985. She remembers the appellant telling her that she had hired an attorney in 1988 or 1989 for the purpose of obtaining an annulment from W.P. Thereafter in 1990, M.F., B.F's daughter, began searching for a certificate of divorce between W.P. and A.G. The assertion that M.F. began her search in 1990 is confirmed by documents of record. In addition, the record includes: a lease renewal showing one-person occupancy of the appellant's apartment for the year ending October 1991; and a letter from the appellant's apartment manager confirming that the appellant approached the management office prior to November 1, 1990, mentioned that she was separated and requested an apartment for W.P. These documents coupled with the statements of the appellant, her neighbor and her apartment manager clearly show that the appellant had stopped holding herself out to the public as W.P.'s wife by November 1, 1990. The only evidence of record showing otherwise is a prescription dated November 1992, on which the name "[redacted]" appears, and the appellant's March 1992 statement that she first realized that W.P. was married to another woman in 1991. This evidence, alone, is insufficient to defeat the documents and statements previously noted. Moreover, in light of the fact that the appellant promptly notified the RO of her remarriage in 1980, thereby causing her benefits to be terminated, and despite the appellant's one contradictory statement, the Board has no reason to question her credibility. The preponderance of the evidence establishes that the appellant tried to terminate her relationship with W.P. and stopped holding herself out to the general community as W.P.'s wife prior to November 1, 1990. Therefore, the requirements for recognition as the veteran's surviving spouse for the purpose of reinstating Department of Veterans Affairs death pension benefits have been met. Accordingly, the appellant's claim must be granted. ORDER Recognition as the veteran's surviving spouse for the purpose of reinstating Department of Veterans Affairs death pension benefits is granted. BRUCE KANNEE Member, Board of Veterans' Appeals