Citation Nr: 1318244 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 10-49 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim of entitlement to recognition as the surviving spouse of the Veteran for Department of Veterans Affairs purposes. ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The Veteran served on active duty from June 1948 to April 1949, and from August 1949 to September 1952. He died in November 1997. The appellant in this case seeks recognition as his surviving spouse for VA purposes. This matter comes to the Board of Veterans' Appeals (Board) from a January 2010 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In an April 2013 letter, the Board advised the appellant that Romeo C. Plata, the individual she had appointed to represent her in her claim, was not accredited to represent claimants before VA. She was offered the opportunity to appoint an accredited Veterans Service Organization or a qualified private attorney or agent. She was also advised that she had the option of representing herself. She was further advised that unless she responded within 30 days, the Board would presume that she wished to proceed pro se. In a May 2013 letter, the appellant reiterated her contentions, although she did not specifically respond to the Board's inquiry regarding representation. Having received to further response from the appellant, the Board will proceed with adjudication of the appeal under the presumption that she wishes to represent herself. FINDINGS OF FACT 1. In an unappealed May 2000 decision, the Board denied the appellant's claim of entitlement to recognition as the surviving spouse of the Veteran for VA purposes on the basis that their marriage was not of sufficient duration to establish basic eligibility for VA benefits, nor had a child been born to them. 2. In December 2009, the appellant again requested recognition as the surviving spouse of the Veteran for purposes of entitling her to VA benefits. 3. Evidence received since the final May 2000 Board decision includes the appellant's recent contentions to the effect that she and the Veteran entered into what she believed was a valid common law marriage in 1995, more than one year before the Veteran's death. 4. When presumed credible, the appellant's statements relate to an unestablished fact necessary to substantiate the claim and raise a reasonable possibility of substantiating the claim. 5. The appellant and the Veteran were legally married on January [redacted], 1997, and no child was born to their relationship. 6. The Veteran died in November 1997. 7. The appellant's contentions that she and the Veteran entered into what she believed to be a valid common law marriage in 1995 are not credible and the record otherwise contains no probative evidence that the appellant and the Veteran entered into a deemed valid marriage one year or more prior to the Veteran's death. CONCLUSIONS OF LAW 1. The May 2000 Board decision denying the appellant's claim of entitlement to recognition as the surviving spouse of the Veteran for VA purposes is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104, 20.1100 (2012). 2. New and material evidence has been received to warrant reopening of the claim of entitlement to recognition as the surviving spouse of the Veteran for VA purposes. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for the appellant's recognition as the surviving spouse of the Veteran for VA purposes have not been met. 38 U.S.C.A. §§ 101, 1304, 1310, 1541, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.5, 3.50, 3.54 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the appellant under the VCAA. In a September 2010 letter, VA notified the appellant of the information and evidence needed to substantiate and complete her claim, and of what part of that evidence she was to provide and what part VA would attempt to obtain for her. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012). The letter included the additional notification requirements imposed by the U.S. Court of Appeals for Veterans Claims (Court) in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and Kent v. Nicholson, 20 Vet. App. 1 (2006). Since the issuance of this letter, the RO has reconsidered the appellant's claim, most recently in the March 2012 Supplemental Statement of the Case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (holding that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board's review of the record reveals no indication that there is available evidence relevant to the claim which has not yet been obtained. The appellant has not argued otherwise. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary. Background The record on appeal contains an Affidavit in Lieu of Certificate of Legal Capacity to Contract Marriage for American Citizens completed by the Veteran on December 9, 1996. On the affidavit, the Veteran indicated that he was a legal resident of the State of Washington but had an address in the Philippines. He attested to the fact that he had legally terminated his prior marriage, and was applying to marry the appellant, a resident of the Philippines. The record also contains a Civil Registry Form indicating that on January [redacted], 1997, the appellant and the Veteran were married in a church ceremony. In July 1997, the Veteran submitted a VA Form 21-686c, Declaration of Status of Dependents, on which he listed the appellant as his spouse, stating that they had married on January [redacted], 1997. He did not reference an earlier common law marriage. In November 1997, the Veteran was admitted to a hospital in the Philippines for evaluation of psychiatric symptomatology. In setting forth the Veteran's medical history, the hospitalization report notes that the Veteran had first met the appellant in the Philippines in 1996 and they had been married in a church ceremony on January [redacted], 1997. After several months, however, the Veteran and the appellant began having frequent arguments after the Veteran began to suspect that she was taking advantage of his money. During this period, the Veteran also reportedly began spending an inordinate amount of money, frequently travelling between the United States and the Philippines looking for business opportunities. Between August and November 1997, the Veteran was hospitalized on multiple occasions in the United States and the Philippines in connection with violent, incoherent, disorganized, and inappropriate behavior. He was diagnosed as having a mood disorder. In November 1997, the Veteran was discharged from the Philippine hospital to the care of his brother. They returned to the United States to obtain continuing psychiatric care for him. According to his Certificate of Death, the Veteran died later that month in a hospital in Washington State. His death certificate lists his marital status as divorced and his brother as the informant. In January 1998, the appellant submitted an application for VA death benefits as the surviving spouse of the Veteran. She reported that she and the Veteran had been married in January 1997. She did not reference an earlier common law relationship. She also indicated that she had one minor child born in October 1990, whom she described as the Veteran's "step-child." In September 1998, the RO denied the appellant's claim, finding that her marriage to the Veteran was not of sufficient duration to establish basic eligibility for VA benefits, nor had a child been born of their marriage. The appellant appealed the RO's determination, contending that she should be eligible for VA benefits because the Veteran had provided financial support for her daughter during their marriage, her daughter had used the Veteran's surname, and he had contemplated adopting her. Again, she made no reference to an earlier common law marriage to the Veteran. In a May 2000 decision, the Board determined that, as a matter of law, the appellant was not entitled to recognition as the surviving spouse of the Veteran for VA purposes. In its decision, the Board noted that the appellant and the Veteran had been married in the Republic of the Philippines on January [redacted], 1997, and that the Veteran had died less than one year later, in November 1997. The Board noted that although both the appellant and the Veteran had had children with other individuals prior to their marriage, no child had been born to the appellant and the Veteran, either during or before their marriage. The Board further noted that the appellant did not claim to have been married to the Veteran within 15 years of his separation from service, to have been married to him for one year or longer, or to have given birth to his child. The Board also considered the appellant's contentions regarding her daughter but found that the controlling law did not provide for a surviving spouse's eligibility based on the financial support provided for a stepchild or an adopted child. The record currently available to the Board contains no indication that the appellant appealed the Board's May 2000 decision. In December 2009, the appellant requested reopening of her claim. She indicated that she did not think it was fair that she had been denied VA benefits as the surviving spouse of the Veteran just because they had been married less than one year. In January 2010, the RO denied her claim, again finding that her marriage to the appellant did not meet the eligibility criteria to entitle her to VA benefits. The appellant thereafter initiated an appeal of the RO's determination, contending that even if she did not meet the one year requirement of marriage prior to the appellant's death, she should be entitled to benefits because they had lived together as husband and wife in a common law marriage since 1995. In support of her recent contention to this effect, the RO solicited additional information from the appellant regarding her relationship with the Veteran. In response to the RO's inquiries, the appellant claimed that she and the Veteran had begun living together as husband and wife in 1995, that she immediately took his last name, and that they both agreed they were to be formally married. She acknowledged that no children were born of the relationship. The appellant claimed that at the time she and the Veteran began living together, she had been unaware that common law marriages were not legal under Philippine law. She claimed that she and the Veteran were not married immediately after moving in with each other because she wanted to have a "trial marriage" to see if they were compatible prior to entering into a formal marriage. In September 2010, the appellant submitted statements from a neighbor and her driver, both of whom indicated that the appellant and the Veteran had begun living together as husband and wife in 1995. The appellant also submitted assorted documents, most of which are duplicative of evidence already considered by the Board at the time of its May 2000 decision. Non-duplicative documents submitted by the appellant included a copy of a license application completed by the Veteran in June 1996 on which he indicated that he was a resident of Washington and listed his home address in that state. Non-duplicative documents submitted by the appellant also included documents from a regional trial court in the Philippines indicating that in April 1997, the appellant and the Veteran filed a petition requesting that the Veteran be allowed to adopt the appellant's daughter. (The record shows that the Veteran died before completing the adoption process). In the April 1997 petition, the appellant and the Veteran indicated that they had been legally married on January [redacted], 1997. In October 1997, a social worker completed a home study report which noted, in pertinent part, that the appellant and the Veteran had first met in the latter part of 1996 in the Philippines and thereafter began living together. They had married in January 1997 and had had no children together so they decided that the Veteran would adopt the appellant's daughter. Based on the additional evidence received since the Board's May 2000 decision, in a November 2010 Statement of the Case, the RO determined that new and material evidence had been received and reopened the appellant's claim. The RO denied the claim on the merits after considering it de novo. The appellant perfected an appeal in December 2010. Applicable Law New and material evidence In general, decisions of the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104, 20.1100 (2012). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence must be presumed unless evidence is inherently incredible or beyond competence of witness). Recognition as the surviving spouse of a Veteran The term "surviving spouse" is defined in pertinent part as a person of the opposite sex who (1) was the lawful spouse of a Veteran at the time of the Veteran's death; and (2) 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 fault of the spouse; and (3) who has not remarried. 38 U.S.C.A § 101(3) (West 2002); 38 C.F.R. § 3.50 (2012). Death pension 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 U.S.C.A. § 1541(f); 38 C.F.R. § 3.54(a). Dependency and Indemnity Compensation (DIC) benefits payable under 38 U.S.C.A. § 1310(a) may be paid to the surviving spouse of a Veteran who died on or after January 1, 1957, who was married to the Veteran: (1) before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the death of the Veteran was incurred or aggravated; or (2) for one year or more; or (3) for any period of time if a child was born of the marriage, or was born to them before the marriage. See 38 U.S.C.A. §§ 1304, 1310(a); 38 C.F.R. § 3.54(c). Proof of marriage may be established by various means, including a copy or abstract of the public record of marriage or an original certificate of marriage, affidavits or certified statements of two or more eyewitnesses to the ceremony, or other secondary evidence which reasonably supports a belief by the Adjudicating activity that a valid marriage actually occurred. 38 C.F.R. § 3.205(a). In jurisdictions where marriages other than by ceremony are recognized, including common law marriages, the affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parties held themselves out as married, and whether they were generally accepted as such in the communities in which they lived. Id. Where an attempted marriage is invalid by reason of legal impediment, an attempt marriage may nevertheless be "deemed valid" if certain requirements are met. Generally, such an attempted marriage will be "deemed valid" if: (a) the attempted marriage occurred one year or more before the Veteran died; and (b) the claimant entered into the marriage without knowledge of the impediment; and (c) the claimant cohabited with the Veteran continuously from the date of the attempted marriage until his death; and (d) no other claimant has been found to be entitled to gratuitous VA death benefits. 38 C.F.R. § 3.52. If the provisions of 38 C.F.R. § 3.205(a) are satisfied as well as those of 38 C.F.R. § 3.52, the claimant's signed statement that she had no knowledge of an impediment to a marriage to the Veteran will be accepted as proof of the fact, in the absence of information to the contrary. 38 C.F.R. § 3.205(c). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis As discussed in more detail above, the record shows that the appellant and the Veteran were legally married on January [redacted], 1997. The Veteran died in November 1997. In January 1998, the appellant submitted an application for VA death benefits as the surviving spouse of the Veteran, stating that she and the Veteran had been married in January 1997. Based on this evidence, in a May 2000 decision, the Board determined that, as a matter of law, the appellant was not entitled to recognition as the surviving spouse of the Veteran for VA purposes as their marriage was not of sufficient duration to establish basic eligibility for VA benefits. In its decision, the Board expressly noted that the appellant did not claim to have been married to the Veteran for one year or longer prior to his death. The appellant did not appeal the Board's May 2000 decision. Thus, it is final and not subject to revision on the same factual basis. In this appeal, the appellant seeks reopening of her claim for recognition as the surviving spouse of the Veteran for purposes of entitling her to VA benefits. As set forth above, the additional evidence received in connection with this claim includes the appellant's recent recollections to the effect that she and the Veteran had entered into what she believed was a valid common law marriage in 1995, more than one year before the Veteran's death. The appellant's recent statements are certainly new and were not before the Board when the appellant's claim was last considered in May 2000. Given the applicable legal criteria, this evidence relates to an unestablished fact necessary to substantiate the claim, i.e. potential evidence of a deemed valid marriage which began in 1995, more than one year prior to the Veteran's death. Presuming the credibility of the appellant's recent statements as required by Justus, such evidence raises a reasonable possibility of substantiating the claim. This evidence is therefore new and material and the claim is reopened. Turning to the merits of the claim, the Board notes that the Justus presumption of credibility does not attach after a claim has been reopened. Rather, in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility, and therefore the probative value, of proffered evidence in the context of the record as a whole. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); see also Shade v. Shinseki, 24 Vet. App. 110, 124 (2010) (noting that "[n]ew and material evidence is evidence that-if found credible-would either entitle the claimant to benefits or to some further assistance from the Secretary in gathering evidence that could lead to the granting of the claim. Of course, once a claim is reopened, the adjudicator may determine that the new evidence is not credible or is outweighed by other evidence."). After carefully considering the evidence of record, the Board finds that the appellant is not entitled to recognition as the surviving spouse of the Veteran for purposes of VA benefits. The Board finds that the most probative evidence clearly establishes that the appellant and the Veteran were legally married on January [redacted], 1997, and he died in late November 1997, less than one year later. Because the appellant was not married to the Veteran for one year or more prior to his death, a child was not born to them, and they were not married prior to January 1, 1957, nor did their marriage occur within 15 years of his discharge, none of the requirements for establishing eligibility for VA benefits as a surviving spouse of a Veteran have not been satisfied. The evidence is not so evenly balanced as to allow for the application of reasonable doubt. 38 U.S.C.A. § 5107(b). In reaching this decision, the Board has considered the appellant's recent contentions to the effect that she and the Veteran had lived together as "husband and wife" in what she believed to be a valid common law marriage since 1995 but finds that her contentions are wholly lacking in credibility. See Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001) (recognizing the Board's inherent fact-finding ability); see also Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (discussing the factors to be considered in determining the weight to be assigned to evidence, including inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, and witness demeanor). For VA compensation purposes, the term "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 right to benefits accrued. 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). In this case, the Veteran and the appellant were married in the Philippines, a jurisdiction which does not recognize common law marriages. The Board has further considered that in cases where there is a legal impediment to entering into a marriage, such as if common-law marriage is not recognized in a jurisdiction, an otherwise invalid common-law marriage could be "deemed valid" if the appellant was unaware of the legal impediment. See Colon v. Brown, 9 Vet. App. 104, 107-108 (1996); VA O.G.C. Prec. 58-91 (July 7, 1991), 56 Fed. Reg. 50151 (1991) (the fact that a jurisdiction does not recognize common-law marriage is considered a type of legal impediment). In this case, however, as set forth in detail above, the record establishes quite clearly that the appellant and the Veteran did not, as she now claims, enter into a marital relationship in 1995. Rather, the record shows that they did not even meet each other until late 1996. This fact is repeatedly noted in multiple pieces of contemporaneous evidence, including private clinical records and documents from a regional trial court in the Philippines. Indeed, it appears that the Veteran did not even move to the Philippines until later in 1996. In that regard, the record shows that in June 1996, he completed a license application listing his address in Washington State. Finally, the Board notes that when she submitted her original application for VA benefits as the surviving spouse of the appellant in 1998, the appellant reported that she and the Veteran had been married in January 1997. She gave no indication that she believed they had entered into an earlier marriage in 1995. The Board assigns far more probative weight to contemporaneous records than to the recent contentions of the appellant which were made in the context of a claim for monetary benefits. In other words, the appellant has an interest in obtaining financial benefits in the form of VA death benefits and her recent assertions in this regard further that interest. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (recognizing that "interest in the outcome of a proceeding may affect the credibility of testimony"). In summary, the Board finds that the most probative evidence establishes that the appellant and the Veteran were legally married on January [redacted], 1997, and no child was born to their relationship. The Veteran died in November 1997, less than one year later. The appellant's contentions that she and the Veteran entered into what she believed to be a valid common law marriage in 1995 are not credible and the record otherwise contains no probative evidence that the appellant and the Veteran entered into a deemed valid marriage one year or more prior to the Veteran's death. Given record, the Board finds that the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53. (CONTINUED ON NEXT PAGE) ORDER New and material evidence has been received and the claim for recognition of the appellant as a surviving spouse for VA benefits has been reopened. The appeal is allowed to this extent. Entitlement to recognition as the surviving spouse of the Veteran for Department of Veterans Affairs purposes is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs