Citation Nr: 1007232	
Decision Date: 02/26/10    Archive Date: 03/05/10

DOCKET NO.  08-25 518	)	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 as the surviving 
spouse of the Veteran for the purpose of VA death benefits.


ATTORNEY FOR THE BOARD

T. L. Anderson, Associate Counsel


INTRODUCTION

The Veteran had active service in the Navy from February 1975 
to August 1991.  The appellant seeks status as the surviving 
spouse of the Veteran for the purpose of eligibility for 
Department of Veterans Affairs (VA) death benefits.

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) from a December 2007 decision by the above 
Department of Veterans Affairs (VA) Regional Office (RO).


FINDINGS OF FACT

The weight of the evidence is against a finding that the 
Veteran and the appellant lived together as husband and wife 
for at least five years, a requirement for marriage under 
Article 34 of the New Family Code of the Philippines, prior 
to signing an affidavit stating so, and thus, her marriage 
with the Veteran is not valid under Article 34.


CONCLUSION OF LAW

The appellant is not entitled to recognition as the surviving 
spouse of the Veteran for purposes of VA benefits.  38 
U.S.C.A. § 101(3), 103 (West 2002 & Supp. 2009); 38 C.F.R. §§ 
3.1(j), 3.50, 3.53, 3.205, 3.206 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced 
VA's duty to notify and assist claimants in substantiating 
their claims for VA benefits, as codified in pertinent part 
at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 
2009); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2009).


Congress, in enacting the statute, noted the importance of 
balancing the duty to assist with "the futility of requiring 
VA to develop claims where there is no reasonable possibility 
that the assistance would substantiate the claim."  Mason v. 
Principi, 16 Vet. App. 129, 132 (2002).  Where the law, and 
not the evidence, is dispositive of a claim, the VCAA is not 
applicable.  Id. (VCAA not applicable to a claim for non-
service-connected pension when the claimant did not serve on 
active duty during a period of war, as required by law).  The 
Court has held that when the interpretation of a statute is 
dispositive of the issue on appeal, neither the duty-to-
assist nor the duty-to-notify provisions of the VCAA are 
implicated.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 
(2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see 
also VAOPGCPREC 5-2004 (June 23, 2004).

Because the law is dispositive in the instant appeal, the 
Board finds that the provisions of the VCAA are not 
applicable to this appellant's claim.  Nonetheless, we do 
note that an August 2007 letter informed the appellant of 
what the evidence must show in order to support her claim, 
and the May 2008 Statement of the Case (SOC) included the 
laws and regulations pertaining to the definition of a valid 
marriage for VA benefits purposes.  The appellant submitted 
various statements subsequent to receiving the SOC and 
subsequent May 2009 SSOC, and has not identified any 
additional pertinent evidence which should have been 
obtained.  

The Board concludes that no further notification or 
development of evidence is required.  Therefore, no useful 
purpose would be served in remanding this matter for yet more 
development.  Such a remand would result in unnecessarily 
imposing additional burdens on VA, with no additional 
benefits flowing to the Veteran.  The Court of Appeals for 
Veteran Claims has held that such remands are to be avoided.  
See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis 
v. Brown, 6 Vet. App. 426, 430 (1994).


II.  Recognition as a Surviving Spouse

A.  Applicable Law

Under statute and regulation, the term "marriage" means a 
marriage valid 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 rights to benefits accrued.  38 
U.S.C.A. § 103(c) (West 2002 & Supp. 2009); 38 C.F.R. § 
3.1(j) (2009).  In this case, the Veteran and the appellant 
resided in the Philippines, and the right to death benefits 
accrued on the date of death of the Veteran in the 
Philippines.

A "spouse" is defined as a person of the opposite sex whose 
marriage to the veteran meets the requirements of 38 C.F.R. 
§ 3.1(j).  38 C.F.R. § 3.50(a).  The pertinent regulation 
regarding surviving spouses further provides that, "[e]xcept 
as provided in § 3.52, '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 the 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 fault of the spouse; and (2) [e]xcept 
as provided in § 3.55, has not remarried or has not since the 
death of the veteran . . . 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(b).  This regulation is based upon 38 U.S.C.A. § 101(3).

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).  Temporary 
separations which ordinarily occur, including those caused 

for the time being through fault of either party, 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).

38 C.F.R. § 3.55 provides that, in general, entitlement to VA 
benefits as a surviving spouse terminates with the remarriage 
of the surviving spouse, and cannot be reinstated until the 
subsequent marriage has ended, such as by death, divorce, or 
annulment.  This regulation, however, does not pertain to 
this matter, because there is no evidence showing, or any 
allegation made, that the appellant has remarried.

In the absence of conflicting information, proof of marriage 
by a copy of the public record of marriage containing 
sufficient data to identify the parties, date and place of 
marriage, and the number of prior marriages if shown on the 
official record along with a certified statement by the 
appellant concerning the date, place, and circumstances of 
the dissolution of any prior marriage may be accepted as 
establishing a valid marriage.  Where there is conflicting 
information, proof of termination of a prior marriage will be 
shown by proof of death or a certified copy or abstract of a 
final divorce decree or annulment.  38 C.F.R. § 3.205(a), 
(b).

Article 34, formerly Article 76, of the New Family Code of 
the Philippines, provides that no license shall be necessary 
for the marriage of a man and a woman who have lived together 
as husband and wife for at least five years and without any 
legal impediment to marry each other.  The contracting 
parties shall state the foregoing facts in an affidavit 
before any person authorized by law to administer oaths.  The 
solemnizing officer shall also state under oath that he/she 
ascertained the qualifications of the contracting parties and 
found no legal impediment to the marriage.  


B.  Facts and Analysis

In this case, the Veteran, who had qualifying service, died 
in July 2007.  The RO denied the appellant's claim for VA 
benefits as a surviving spouse of the Veteran in a December 
2007 letter.  The RO stated that the evidence showed that, 
although a Marriage Contract showed that the appellant and 
Veteran were married in October 1987 pursuant to Article 34 
of the New Family Code of the Philippines (Article 34), an 
October 2007 letter from the appellant stated that she and 
the Veteran first lived together as husband and wife in 
November 1985, not quite 2 years prior to the October 1987 
marriage.  Thus, the appellant's marriage to the Veteran was 
found not to be valid under Article 34, which requires the 
parties to have lived together as husband and wife at least 5 
years prior to the marriage.  

The Veteran was previously married to another woman, M.L.D., 
but the claims file contains a Dissolution order issued by 
the State of California in September 1985.

The claims file also contains a Marriage Contract, described 
briefly above, which states that the appellant and the 
Veteran solemnized their marriage in October 1987.  The judge 
who solemnized the marriage certified that no marriage 
license was presented to him, because the marriage was 
performed under Article 76 (now Article 34).  

An October 1987 Affidavit signed by the judge who solemnized 
the marriage states that both the Veteran and the appellant 
had obtained the age of maturity, that they had lived 
together as husband and wife for at least 5 years, that they 
desired to marry each other, and that they had 2 children 
together, R.S.D. and W.S.D.  

A separate October 1987 Joint Affidavit signed and sworn by 
the Veteran and the appellant states that the couple had been 
living together in a common-law relationship since September 
1982, and that they had 2 children together, R.S.D. and 
W.S.D., who were 4 years and 1 year old, respectively.  It 
also stated that their marriage fell under the provisions of 
Article 76.  

However, in an October 2007 Statement in Support of Claim, 
the appellant wrote that she began living with the Veteran as 
husband and wife in November 1985, and that when she met him 
she already had a 3-year-old son named R.S.D., who had a 
biological father other than the Veteran.  

R.S.D.'s birth certificate states that he was born in July 
1983, and lists the Veteran as R.S.D.'s father.  However, the 
certificate in the claims file was prepared and certified in 
November 1987.  

In support of her claim, the appellant has submitted a number 
of sworn affidavits attesting to her marriage with the 
Veteran.  Namely, three separate March 2008 Affidavits of 
neighbors of the appellant state that the neighbors knew both 
the Veteran and the appellant, and that the Veteran and 
appellant had been living together since they were married in 
October 1987, until the Veteran's death.  Next, a June 2008 
Affidavit of Four Neighborhood Witnesses states that the 
signatories knew that the Veteran and appellant had lived 
together as husband and wife since 1982, that they got 
married in October 1987, that during their cohabitation they 
had 3 children together - R.M.D. born in 1983, W.M.D. born in 
1986, and C.M.D. born in 1993.  Finally, a March 2008 
Affidavit of Two Disinterested Persons states that the 
signatories were invited to witness the marriage ceremony of 
the appellant and the Veteran in October 1987, and that one 
of the signatories actually stood as a principal witness to 
the ceremony.  

The appellant submitted a number of pictures of herself with 
the Veteran, dating from November 1985 to June 2007.  
Further, she submitted letters that were written between her 
and the Veteran, dating from February 1987 to January 1991.  

In addition, the claims file contains a March 1988 memorandum 
from the Commander of U.S. Naval Forces in the Philippines 
stating that the marriage between the appellant and the 
Veteran is a valid marriage.  It cites to the marriage 
license issued by the Republic of the Philippines, solemnized 
in October 1987, and further states that the appellant is 
entitled to all dependent benefits resulting from the 
marriage.  

Based on all the foregoing evidence, the Board finds that the 
preponderance of the evidence is against a finding that the 
appellant is the Veteran's surviving spouse for the purpose 
of receiving VA benefits.  Specifically, the Board finds that 
the Veteran and appellant did not have a legally valid 
marriage under Article 34.  Although a June 2008 Affidavit 
from the appellant's neighbors stated that the Veteran and 
appellant lived together as husband and wife beginning in 
1982, the appellant stated in her own words in an October 
2007 letter that she did not live with the Veteran until 
November 1985.  The Board finds the appellant's October 2007 
letter to be more probative than the June 2008 Affidavit of 
her neighbors. 

Moreover, there is no other documentation that supports the 
appellant's later contention that she lived with the Veteran 
for 5 years prior to their October 1987 marriage 
solemnization.  The letters between the appellant and the 
Veteran are dated from February 1987 to January 1991, and the 
photographs of the appellant and the Veteran are dated from 
November 1985 to June 2007.  Thus, the letters and 
photographs do not support the appellant's contention that 
she knew the Veteran prior to November 1985.  Therefore, the 
evidence shows that the appellant and the Veteran lived 
together only slightly less than 2 years prior to the October 
1987 marriage ceremony.  Article 34 requires that a couple 
live together as husband and wife for at least 5 years in 
order for a marriage to be considered valid, and thus, the 
appellant did not have a valid Article 34 marriage with the 
Veteran.   

While the Board sympathizes with the appellant's loss, the 
Board finds that the appellant is not entitled to recognition 
as the surviving spouse of the Veteran for purposes of VA 
benefits.  


ORDER

The appellant's claim of entitlement to recognition as the 
surviving spouse of the Veteran is denied.



__________________________
ANDREW J. MULLEN 
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs