Citation Nr: 0100129 Decision Date: 01/04/01 Archive Date: 01/11/01 DOCKET NO. 99-17 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant may be recognized and paid as the veteran's unremarried surviving spouse for a period prior to October 1, 1998. ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had recognized active guerrilla service on November [redacted], 1942, the date he was killed in action. In a December 1997 administrative decision, the Manila, Republic of the Philippines VA Regional Office (RO) determined that the appellant was no longer entitled to VA recognition as the veteran's surviving spouse and thereby terminated her award of Dependency, Indemnity and Compensation (DIC) benefits, effective January 1, 1959. FINDINGS OF FACT 1. The RO awarded DIC benefits to the appellant, as the unmarried widow of a veteran, whose death was due to service, from March 21, 1950. 2. In a December 1997, administrative decision, the RO determined that the appellant could no longer be recognized as the veteran's surviving spouse, effective January 1, 1959. 3. The credible and persuasive evidence shows that beginning in about 1958, the appellant lived with another individual of the opposite sex and held herself out openly to the public as his wife in a relationship which consisted of more than short, sporadic engagements. 4. The appellant did not terminate the relationship or conduct which had created an inference of remarriage prior to his death in 1997. CONCLUSION OF LAW The appellant is not entitled to recognition as the veteran's surviving spouse, for the purposes of reinstatement of VA benefits prior to October 1, 1998. 38 U.S.C.A. § 101(3) (West 1991), (as amended at Public Law (Pub.L.) 87-674, 76 Stat. 558 (September 19, 1962); Pub. L. 101-508, § 8004, 104 Stat. 1388-343 (Nov. 5, 1990); and Pub. L. 102-568, § 103, 106 Stat. 4320, 4322 (Oct. 29, 1992)); 38 C.F.R. §§ 3.1(j), 3.50(b), 3.55(a), 3.102, 3.215 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The appellant initially filed for benefits as the veteran's widow in 1950. Based on affidavit evidence and testimony, it was determined that the appellant and the veteran had been married on September [redacted], 1937. In correspondence to the appellant dated in April 1952, she was informed that she had been held to be the unremarried widow of the deceased veteran and that compensation would be forthcoming. She was also informed that if she were to remarry, she was not thereafter to endorse any check and that DIC would be discontinued as a result. A Field Investigation was held during 1963 and 1964 as to an alleged relationship between the appellant and another man, JR, which predated 1937, and which produced offspring. The premise of the Field Investigation was that if the appellant and JR had a legal marriage, this would have placed an impediment on the marriage between the veteran and the appellant in 1937, rendering it null and void. It was held that the marriage between the veteran and the appellant had been valid and benefits continued. However, in the course of that action, the appellant was deposed by the examiner as to her situation after the veteran's death. Specifically, the exchange was as follows [the transcript having been read thereafter by the appellant and signed in June 1964 as accurate]: Q. Is it not true that after the death of the veteran, you have remarried? A. No, sir. Q. Have you lived with another man in the relationship of husband and wife since the death of the veteran? A. No, sir. Q. Have you become pregnant or given birth to any child by another man during the same period? A. No, sir. Q. How are you known in the community? A. As the unremarried widow of the veteran... Q. How do you represent or hold yourself out to the people in the community? A. As such widow... Q. Who are your present house companions? A. My married son, (R), and his family consisting of his wife (SB), and their five living children. On the back of a VA Form 21-0537, Marital Status Questionnaire, sent to the appellant by the RO, which re- stated the criteria for continuing to receive DIC benefits and asked that she respond to specific questions, a handwritten notation from the appellant dated August 13, 1990 and received August 16, 1990, stated that "I am still the widow of the deceased veteran (named herein)". She also checked the box on that form that reflected that she had not remarried since the death of the veteran, and otherwise indicated as "NA" all other questions. In November 1993, additional benefits on the basis for need for regular aid and attendance were granted the appellant. In June 1996, however, the appellant's monthly benefits were suspended until her whereabouts and existence could be confirmed. It was noted that she was no longer living at her prior address. Several affiants indicated that she had not lived there for about a year, that she was still alive, and one family member thought she was on vacation, but none could give her new address. Soon thereafter, correspondence as received from the appellant to the effect that she had not been at the prior address because she was then visiting one of her granddaughters. She confirmed her current address. In the interim, a request for a Field Investigation was instituted as part of the Aged Beneficiary Project, dated in July 1996. A Field Investigation report, a VA Form 27-3537b dated in August 1996, was to the effect that the appellant was not living at her given address; and further, that witnesses had been interviewed who said she was living with another man elsewhere at an unknown specific address. It was recommended that benefits be stopped until she could be found and her marital status confirmed. In September 1996, the appellant was notified that DIC benefits were suspended pending additional information as to her whereabouts. One investigative report was to the effect, in summary, that the appellant was felt [by the one witness who could or would actually identify her] to be living with "her husband" in a given area, and that she was not residing at her given address but only picked up her check there. Further investigation was to be instituted as to her marital status and related factors. A further report of Field Investigation dated in January 1997 was to the effect that according to a number of credible community members [who had been interviewed from the community in which the appellant was actually residing], the appellant was living in a marital relationship with a man, namely AL, and had been in such a relationship for some time although none were able to verify whether they were or were not legally married or merely living as such. The Field Investigator queried the appellant who responded that she had lived but never contracted a marriage with JR and had two children with him before she married the veteran in 1937; that she later heard that he had died in the U.S.; that after she ceremonially married the veteran in 1937, they had a child who died in miscarriage; and that she lived with AL from 1959 but had not contracted a marriage with AL for fear of losing her VA benefits. She said that she and AL had separated sometime in 1987 and that several years later, she had heard that he had died in January 1997. She further stated that during the time she and AL were together, they introduced themselves as lived-in partners to their friends and neighbors, and that they had no conjugal properties. A death certificate was acquired showing that AGL had died on January [redacted], 1997 in the general location cited by those noted above as indicating the cite of the appellant and her husband's residence. On further inquiry, the appellant denied that she was married to AL, and several neighbors either indicated that they had not met her, or that they did not know if she was remarried, nor was she presently (in late 1996/early 1997) living with anyone in a martial relationship. A memorandum prepared after the report of the February 1997 Field Investigation was reviewed is of record. It noted that the appellant had admitted that she lived with AL in 1959 but said she had not contracted a marriage with him for fear of losing her VA benefits; that they had separated in 1987 and that she had heard that he died in January 1997; and they had both introduced themselves as lived-in partners. The investigator was instructed to further pursue various specific questions, addressing them to the appellant, to include why she concealed her relationship with AL when interviewed in 1964; what was her true marital status, etc.; and to take depositions from others as well. In another extensive series of queries and responses, the appellant stated that she had only been married once in her lifetime, in 1937, to the veteran; that she lived with him until his death during the war. Specifically, the pertinent portions of the transcript of the interview stated as follows: Q. In your whole life, how many times [have you] been married legally? A. Only once, and that was my marriage to the veteran...I could no longer recall the exact date of our marriage but I believe it was sometimes in 1937. We were married here in ... and our marriage was solemnized by a judge. Q. Do you have any children with (the veteran)? A. None. However I would (like) to mention(ed) that I got pregnant but had (a) miscarriage. Q. For how long did you live with (the veteran)? A. Since the time of our marriage (1937) up to the time of his death during the war. Q. Do you have children with other man? A. Yes. I have two living children with my first husband, JR, namely (...). They are both in the States. I was not married legally to JR. We just lived together in a husband and wife relationship in ... and after living together for more or less 5 years, we got separated because of his relationship with another woman with whom he married legally. Q. Were you involved with any man in any kind of marital relationship since the death of (the veteran)? A. Yes. I admit that I had marital affair with (AL). Our relationship started I believe sometimes in 1958. Q. Were you married legally to AL? A. No we were not married legally. Q. If you were not married legally to A(L), how do you described your marital affairs with him? A. Although we were not married legally, I describe our relationship just like a husband and wife. Q. Did you live with (AL) in one house? A. Yes. We lived together at...then transferred to... also at...and at ... Q. Do you have children with [AL]? A. No, we are childless. Q. What is the civil or marital status of [AL] when you began your marital affairs in 1958? A. He was single. Q. If he was single and you were already a widow at that time, why you did not legalize your relationship? A. I am not in favor of legalizing our relationship as this might affect my benefits. Q. For how long did you maintain your marital affairs with [AL]? A. From 1958 up to the time of his death on January [redacted], 1997. Q. Did you live continuously together with [AL]? A. Yes, we lived together although there were some quarrels and misunderstanding(s). Because of some misunderstanding(s) sometimes in 1996, I decided to stay permanently in...at my present address while [AL] stay(ed) in...When he got sick, I just visit(ed) him in ...only once in awhile. In fact, he was alone in ...when he died. I was only informed by his brother (DL) about the death of A. Q. Were you been investigated by the VA before concerning your relationship with [AL]? A. Yes. Q. Did you admit to the investigator your relationship with [AL]? A. No. I did not admit my affair with [AL] as I was afraid that it might affect my benefits. Q. Was your relationship with A known to your neighbors in ..., and ..., and ...? A. Yes, I was not hiding my relationship with [AL] to our neighbors. Q. How about in this place (where the interview was being undertaken)? A. He is not well known in this place. Only few people knows him as he visits this place only once in a while. Q. I have no more questions to ask, do you wish to add anything more to say? A. I would like to mention(ed) that I did not admit the truth about my affair with [AL] during the time I was investigated by the VA as this might affect my pension. I am asking for an apology for not being straight during the previous investigation. Q. What is your highest educational attainment? A. High school graduate. I can read and write English. The appellant certified that she had read the foregoing deposition which was also translated to her in Tagalog dialect which she also speaks fluently, and that the contents therein were true to the best of her knowledge and belief, and her thumb print was affixed thereto. Citing the findings of Field Investigations conducted in August 1996, January, February and November 1997, and other evidence, the Field Investigator concluded that the appellant, who was said to be cooperative and provided her written deposition, had "confirmed her marital relationship with AL and admitted that they continuously lived together until his death". The appellant was notified of the aforementioned decision in April 1998. The appellant subsequently submitted correspondence decrying that she had lived with AL but had never set herself out as being married to him. The appellant was informed that based on the benefits paid to her, this decision had created an overpayment in a significant amount from 1959 to March 1998. The appellant's son wrote in November 1998 that she had never been instructed in the regulations which precluded her conduct and that she was penalized as a result. A memorandum was filed in the claims folder from the Chief Investigator to the effect that the written deposition in October 1997 had been taken in the appellant's home with witnesses, with the interview in Tagalog, understood by all involved; and that before she signed it as accurate, the entire thing had been read to her as translated into Tagalog. It was also noted that some other statements of record (and a new address) had apparently been prepared by a "fixer" and did not indicate that the appellant had been apprised of what they said in a language she could understand, and as a result, this would be discountable. Pertinent Law and Regulations VA regulation provides that except as provided in § 3.52, a "surviving spouse" means a person of the opposite sex whose marriage to the veteran meets the requirements of § 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 § 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. It is also noted that on or after January 1, 1971, benefits may be resumed to an unmarried surviving spouse upon filing of an application and submission of satisfactory evidence that the surviving spouse has ceased living with another person and holding himself or herself out openly to the public as that person's spouse or that the surviving spouse has terminated a relationship or conduct which had created an inference or presumption of remarriage or related to open or notorious adulterous cohabitation or similar conduct, if the relationship terminated prior to November 1, 1990. Such evidence may consist of, but is not limited to, the surviving spouse's certified statement of the fact. 38 C.F.R. §§ 3.55(3) and (4), 3.215. Prior to November 1990, the provisions of 38 U.S.C.A. § 103(d) and 38 C.F.R. § 3.55(a)(4) allowed for reinstatement of VA death benefits to surviving spouses whose benefits had been terminated because of remarriage upon termination of the disqualifying marriage by a death, divorce, annulment, or if the remarriage was declared void. These provisions were amended by the Omnibus Budget Reconciliation Act of 1991, Pub. L. No. 101-508, § 8004, 104 Stat. 1388- 348 (Nov. 5, 1990), to create a permanent bar to reinstatement of VA death benefits for those surviving spouses whose disqualifying marriage had been terminated by divorce and whose claim for reinstatement of benefits was not filed before November 1, 1990. This statutory bar was later amended to allow reinstatement of VA death benefits for those surviving spouses whose disqualifying remarriages were terminated by a divorce proceeding which had been initiated prior to November 1, 1990. See Veterans Benefit Act of 1992, Pub. L. No. 102- 568, § 103, 106 Stat. 4320, 4322 (Oct. 29, 1992). On June 9, 1998, Section 8207 of HR 2400 (Public Law 105-178) was signed. This bill added a new subsection (e) to 38 U.S.C. § 1311, which governs the payment of DIC to a surviving spouse. Section 1311(e)(1) provides that remarriage shall not bar a surviving spouse's eligibility for Dependency and Indemnity Compensation (DIC) if the remarriage is terminated by death, divorce, or annulment (unless VA determines that divorce or annulment was secured through fraud or collusion) and Section 1311(e)(2) provides that DIC is not barred if a surviving spouse ceases living with another person and holding himself or herself out openly to the public as that person's spouse. In effect, subsection (e) of Section 8207 reinstates the pre- 1990 rules for the reinstatement of eligibility for DIC benefits under 38 U.S.C.A. § 1311, setting out that a surviving spouse who remarries after the death of a veteran can be reinstated as surviving spouse, for the purposes of being eligible for reinstatement of DIC benefits, when that subsequent marriage terminates. However, the law precludes payment under the new 38 U.S.C.A. § 1311(e) for any month prior to October 1998. PL 105-178 § 8207, 112 Stat. 495 (June 9, 1998). Also, by its express terms, the amendment made by Section 8207 only applies to restoration of eligibility for DIC. See Pub. L. 105- 178 § 8207, 112 Stat. 495 (June 9, 1998); see also VA General Counsel Precedent Opinion 13-98 (September 13, 1998). It is noted that legislative history clearly shows that in 1962, the Veterans' Administration, [now the Department of Veteran's Affairs or VA], recognized that in order to avoid the "remarriage" bar to payment of widow's benefits, women entered into illicit relationships with men and held themselves out to the public to be their wives, but they continued to receive benefits as the widow of a veteran. In order to eliminate these abuses and because it was believed that Congress did not intend or desire that the Government assume any obligation to continue payment of gratuities to a claimant who after her veteran husband's death entered into a relationship giving rise to an inference of remarriage, an administrative standard rule was adopted. The VA adopted a rule, which provided that where certain facts existed, it would be presumed that a remarriage had occurred. Under the administrative standard, it was determined that where there was evidence indicative of remarriage, the claimant was immediately placed under the burden of establishing by clear and convincing evidence that she had not remarried, as a condition to the continuing receipt of gratuitous death benefits. The administrative rule provided that the presumption of remarriage existed when there was proof of a cohabitation by the widow with a man as man and wife; a "holding out" by the two persons to the general community in which they reside that they were husband and wife (which generally was embraced in the requisite cohabitation); and a general reputation in such community that they were married to each other. See S. Rep. No. 1842, 87th Cong. 2nd Sess. 1962, reprinted in 1962 U.S.C.C.A.N. 2589; See also H. Rep. No. 1459, 87th Cong. 2nd Sess. 1962. However, because of questions about and challenges to the validity of the VA's "inference of remarriage" or "presumption of remarriage" rule, in 1962 Congress enacted Pub. L 87-674 to provide statutory confirmation for the VA's rule. Explanations of the bill provide that it was enacted to confirm the VA's administrative rule and to establish a statutory test to be applied in such cases. As such, Congress essentially agreed with the administration's presumption of remarriage test with the exception of two variations. Unlike the administrative rule, the bill rendered the matters of reputation in the community and legal impediment immaterial. See S. Rep. No. 1842, 87th Cong. 2nd Sess. 1962, reprinted in 1962 U.S.C.C.A.N. 2589; See also H. Rep. No. 1459, 87th Cong. 2nd Sess. 1962. It is also acknowledged that in the 1962 explanation of the bill, Congress determined that a relationship which is secretive, which consists of occasional short interludes (such as overnight or over a weekend), or which is otherwise ostensibly illicit in nature is not contemplated within the scope of the proposed statutory restriction. Congress intended, however, that in any case in which the restriction is properly found to require denial or discontinuance of benefits to a widow, such determination would constitute a permanent bar to benefits and termination of the proscribed relationship, either before or after the determination, would be immaterial. See S. Rep. No. 1842, 87th Cong. 2nd Sess. 1962, reprinted in 1962 U.S.C.C.A.N. 2589; See also H. Rep. No. 1459, 87th Cong. 2nd Sess. 1962. With respect to the foregoing congressional intent, the Board initially recognizes that when determining whether a widow's relationship is indicative of remarriage, Congress excluded relationships which were secretive, consisting of occasional short interludes, or which otherwise were ostensibly illicit in nature. Analysis The Board is cognizant of its duty as the fact finder to analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and to provide reasons for its rejection of any material evidence favorable to the appellant. Caluza v. Brown, 7 Vet. App. 498, 506; Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 52-53 (1990). The evidence in this case is admittedly not entirely unequivocal. Nonetheless, in this case, for the reasons discussed below, the Board finds that the credible and persuasive evidence of record supports that entitlement to recognition as the veteran's surviving spouse, for the purposes of reinstatement of VA death pension benefits (prior to October 1, 1998, as stated in the law restoring such benefits, and subsequent to the death of AL in 1997), is not warranted. The credible and persuasive evidence of record shows that the appellant lived with another person of the opposite sex and held herself out openly to the public to be the spouse of such person. Although the appellant and her son have recently alleged that she did not know what was required, on the contrary, she was affirmatively informed as to what would terminate her benefits as an unremarried spouse when she was first given such benefits in 1952, and was reinformed on numerous occasions thereafter. In fact, she has repeatedly admitted that she knew what was required (an argument she has curiously raised in the context of alleging that she lived as husband and wife with AL but that she did not act like they were spouses so as not to lose her benefits). The probative value of the documentary evidence is lessened by the fact that it appears to have been created subsequent to the 1996 field investigation, when the appellant would have had an incentive to create evidence that she held herself out only as the veteran's widow rather than as a living-partner and spouse of someone else. The appellant has recently endeavored to allege that she and AL were merely periodical lovers, but this is negated by the evidence showing their admitted continuous cohabitation as man and wife for decades. The appellant attempts to discredit the field examiner's reports by asserting that information in the report was obtained under duress. However, these assertions are weakened by the fact that numerous disinterested parties also reported that the appellant and AL held themselves out as husband and wife. On the other hand, the field investigation shows that the appellant and AL lived in the same residence from about 1958 until 1997 when he died; that members of the community believed them to be husband and wife; and that the appellant and AL, in fact, held themselves out as husband and wife. The recent field examinations must be considered in light of a similar examination conducted in 1964-5. At the time of the earlier examination the appellant was also maintaining a relationship with AL, about which she then lied, (and now admits that she lied, as she admittedly knew it would jeopardize her benefits as unremarried spouse of the veteran). She cannot have it both ways. Based on the foregoing, the Board finds that the most credible and persuasive evidence of record shows that the appellant held herself out openly to the public to be the spouse of AL in a relationship began around 1958 or 1959 and continued up to the death of AL in 1997. As discussed above, the Board finds that the testimony provided at the time of the field investigation is more credible and probative than the self-serving statements provided thereafter in the heat of potential termination of VA benefits. The credible and persuasive evidence therefore is against that appellant's claim of entitlement to recognition as the veteran's surviving spouse prior to the end of September 1998, as reflected by specific statutory mandates, for the purposes of VA benefits and is not in relative equipoise. Accordingly, the appellant's claim is to that extent, denied. 38 U.S.C.A. §§ 5107; 38 C.F.R. § 3.55(a)(4). ORDER The appellant may not be recognized or paid as the veteran's unremarried surviving spouse prior to October 1, 1998. James R. Siegel Acting Veterans Law Judge Board of Veterans' Appeals