Citation Nr: 1233596 Decision Date: 09/27/12 Archive Date: 10/09/12 DOCKET NO. 09-27 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an effective date earlier than December 1, 2008, for a dependent's allowance for the Veteran's spouse. REPRESENTATION Appellant represented by: David L. Huffman, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from September 1963 to June 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In that decision, the RO awarded an increased payment for the Veteran's spouse and assigned a December 1, 2008, effective date. The Veteran has appealed the assigned effective date for this payment increase. In September 2010, the Veteran and his spouse testified at a hearing before a Decision Review Officer at the RO. A transcript of that hearing is associated with the claims files. While the Veteran had previously requested a Board hearing, in an August 2009 statement, he asserted that he only wished to appear before the RO. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran married B.N. on August [redacted], 1980; he has not seen or talked to B.N. since 1981 and has no knowledge of her whereabouts. 2. The Veteran married A.B. in the Philippines on January [redacted], 2007. CONCLUSION OF LAW The criteria for an effective date of January [redacted], 2007, for a dependent's allowance for the Veteran's spouse are met. 38 U.S.C.A. §§ 103, 5110 (West 2002); 38 C.F.R. §§ 3.1(j), 3.31, 3.401 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As explained below, the evidence currently of record is sufficient to establish the Veteran's entitlement to the benefit sought on appeal. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011) or 38 C.F.R. § 3.159 (2011). II. Analysis The Veteran has contended that the effective date of his increased award due to his marriage to A.B. should be January [redacted], 2007, earlier than the December 1, 2008 effective date currently assigned. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase, will be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110(a). The effective date of the award of any benefit or increase by reason of marriage shall be the date of that event if proof is received by VA within a year from the date of marriage. 38 U.S.C.A. § 5110(n). The "date of claim" for additional compensation for dependents is the date of the Veteran's marriage, if evidence of the event is received within a year of the event; otherwise, the date notice is received of the dependent's existence, if evidence is received within a year of the Department of Veterans Affair's request. 38 C.F.R. § 3.401(b)(1). The earliest date for commencement of payment of an additional award of compensation for a dependent spouse is the first day of the month following the effective date. 38 C.F.R. § 3.31. "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 right to benefits accrued. 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). In July 1967, the Veteran submitted a Declaration of Marital Status (VA Form 21-686c) and copies of his marriage license and certificate, showing that he married J.F. on June [redacted], 1967. In June 1978, the Veteran submitted a copy of a Decree of Dissolution of Marriage, filed in February 1978, between the Veteran and J.F. He also submitted a VA Form 21-686c at that time indicating that he was now divorced. A marriage certificate dated December [redacted], 1985, shows that the Veteran married M.B. The Veteran submitted this certificate to VA in January 1986, along with VA Form 21-686c, on which he listed only the marriage to M.B. A February 1986 letter from VA indicates that the Veteran was being paid benefits for himself and a spouse. In June 1988, VA contacted the Veteran and asked him to complete a VA Form 21-686c regarding his current and all of his prior marriages. The Veteran did not respond and, in a September 1988 letter, the RO informed the Veteran that his VA payment was reduced. In a January 1999 Declaration of Status of Dependents (VA Form 686c), the Veteran listed three previous marriages. He noted a marriage to J.F. in June 1967 that ended in December 1979, a marriage to M.B. in December 1989 that ended in 1990, and a marriage to B (no last name) in 1980 in Houston, Texas. In February 2007, the Veteran submitted a marriage certificate from the Republic of the Philippines, dated January [redacted], 2007, for himself and A.B. He requested that his spouse be added to his VA payment. The Veteran also submitted a VA Form 686c at that time, which listed three marriages: (1) his marriage to J.F. in June 1967 that ended in divorce in February 1978; (2) his marriage to M.B. in December 1985 that ended in April 1989; (3) and his marriage to A.B. that took place on January [redacted], 2007. He noted that A.B. did not yet have a social security number. In a March 2007 letter, the RO asked the Veteran for more information regarding his prior marriages, noting that the history he provided in February 2007 was not the same as he had previously reported. In April 2007, the Veteran submitted another VA Form 686c, on which he listed two marriages: (1) his 1967 marriage to J.F.; and (2) his January 2007 marriage to A.B. On an accompanying written statement, the Veteran indicated that he was also married two other times during troubled times. Both were short, and he did not recall the dates. In both cases, he was told they were annulled. One was in Houston, Texas (B), and the other was in Kansas City in Jackson County, Missouri (M.B). He stated that he was having trouble with alcohol and drug problems at that time. He again indicated that A.B. could not get a social security number until she was in the United States. In a May 2007 letter, the RO informed the Veteran that his claim to add A.B. as his spouse was denied, because he needed to provide evidence of the end of his marriages to M.B. and B. In November 2007, the Veteran submitted a copy of a Decree of Dissolution of Marriage between himself and M.B., which was dated in April 1989. It states that they had married in December 1985 in Missouri. In an April 2008 letter, the RO informed the Veteran that the information regarding his previous marriages to J.F. and M.B. was complete. However, he needed to provide a copy of the public record of his marriage to and divorce from B. In June 2008, the Veteran submitted a copy of a Judgment and Decree of Dissolution of Marriage, dated that same month, between himself and B.N. It states that they were married in August 1980. In an October 2008 written statement, the Veteran indicated that he was married to B.N. in the 1980s and had not seen or heard from her since. Since VA asked for proof of the termination of their marriage, he went through a court proceeding to get one, not knowing anything about B.N's whereabouts. In an October 2008 letter, the RO informed the Veteran that, while he had submitted proof of a divorce from B.N., it was dated after his marriage certificate to A.B. Therefore, VA needed a copy of a marriage certificate between himself and A.B. that was dated after his divorce from B.N. In November 2008, the Veteran submitted a marriage certificate between himself and A.B., dated November 3, 2008. In a November 2008 written statement, the Veteran contends that his January 2007 marriage to A.B. was valid, and he was not married to B.N. or anyone else at that time. He obtained the divorce in June 2008 only for the purpose of providing VA with evidence of the termination of that marriage. However, he was not married to B.N. at that time. It was possible that the June 2008 divorce was not the only termination to the marriage. B.N. married another person after her brief marriage to the Veteran. Therefore, he feels that it is certain that B.N. had obtained a divorce or annulment from him, but he did not know how to obtain that information. In January 2009, the RO recognized A.B. as the Veteran's spouse from December 1, 2008, the first day of the month following the effective date of his marriage in November 2008. In a January 2009 written statement, the Veteran disagreed with the effective date assigned to that addition of his current spouse and believed that it should be January [redacted], 2007. In September 2010, the Veteran and A.B. testified before a decision review officer at the RO. His attorney asserted that it was the Veteran's belief all the time that B.N. had obtained a divorce from him in another state and remarried later in 1981. However, he did not know what state she obtained the divorce in and could not get a copy of the decree. However, based on his and B.N.'s subsequent remarriages, he asserts that they were both legally divorced in 1981. In January 2012, the RO attempted to obtain verification of the Veteran's divorce from B.N. by contacting the Texas Vital Records Department of State Health Services. While there was a record of their marriage, there was no record of their divorce. Someone with the same name as B.N. was married in 1984 and 1993, but there was no verification as to whether this was the same person that the Veteran married. Also in January 2012, the RO contacted a representative for an address thought to be for B.N. but was told that no one by the name lived there. While the Veteran has been married four times, only two of the marriages are at issue here. It is clear that the Veteran married B.N. on August 8, 1980, in Texas. He has maintained that he last spoke to or heard from her in 1981. The latest information the Veteran had regarding B.N. was evidence that she remarried to someone else in the 1980s, which was found by his daughter on the internet. He has not known of her whereabouts since 1981. Since the Veteran and A.B. were married in the Philippines, the Board will look to Philippine law to determine whether their marriage in January 2007 was valid. 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j); see also Badua v. Brown, 5 Vet. App. 472 (1993). Generally, foreign law must be proved. See Brillo v. Brown, 7 Vet. App. 102 (1995). Article 83 of the Civil Code of the Philippines provides that any marriage contracted by a person during the lifetime of the first spouse of such person with any other person shall be illegal and void from its performance unless the first marriage was annulled or dissolved; or the first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court. See Dedicatoria v. Brown, 8 Vet. App. 441 (1995); Badua v. Brown, 5 Vet. App. 472 (1993). Under 38 C.F.R. § 3.205(a), 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 the 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. After reviewing the evidence of record, the Board finds that the Veteran's marriage to A.B. on January [redacted], 2007, was valid according to Philippine law. Specifically, while the Veteran married B.N. in August 1980 and there is no record of their divorce prior to the one he obtained in June 2008, he has repeatedly asserted that he has not had contact with her or known of her whereabouts since 1981. His daughter found evidence online that she remarried in the 1980s, and the Texas Vital Statistics Office found someone by her name to have married in Texas in 1984 and 1993. However, the Texas Vital Statistics Office could not verify that this is the same person to whom the Veteran was married in 1980. Finally, a telephone number attached to an address by a person with the same name as B.N. was called by the RO, but the person who received that call stated that no one with that name had ever lived there. Despite these attempts at locating B.N., there is no evidence of the Veteran having contact with her or knowing her whereabouts since 1981. He stated in October 2008 that he did not know if she was alive or dead. Under Philippine law, which is the law of the place where the Veteran and A.B. married and the law where A.B. resided at the time of the marriage, the Veteran's marriage to A.B. in January 2007 was valid, because, while there was no official record of their divorce until 2008, B.N. had been absent from the Veteran's life for at least seven consecutive years, and the Veteran had no knowledge of her whereabouts or whether she was living or dead. 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). Under Article 83 of the Civil Code of the Philippines, the Veteran's marriage to A.B. in January 2007 was, therefore, valid. There is no evidence of record suggesting that the Veteran has had any contact with B.N. since 1981 or has known her whereabouts since the 1980s. As such, the marriage in January 2007 to A.B. is deemed valid under Philippine law, the place where A.B. resided at the time of the marriage. Thus, an effective date of January [redacted], 2007, is assigned for recognition of A.B. as the Veteran's dependent for VA purposes. ORDER An effective date of January [redacted], 2007, is granted for a dependent's allowance for the Veteran's spouse. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs