Citation Nr: 1756681 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 09-11 851 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for purposes of receiving VA death benefits. REPRESENTATION Appellant is unrepresented Contesting party is presently unrepresented, per an October 2013 correspondence ATTORNEY FOR THE BOARD Robert A. Elliott II, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1960 to November 1982. He died in November 1982. This case comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 decision by the Regional Office (RO) in Manila, the Republic of the Philippines. The appellant seeks entitlement to VA death benefits as his surviving spouse. This claim is subject to the special provisions governing simultaneously-contested claims. See 38 C.F.R. §§ 19.100 -19.102 (2007). In September 2010, the Board remanded the Appellant's claim for further development. The agency of original jurisdiction (AOJ) substantially complied with the September 2010 remand directives, and no further development is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The appellant entered into a valid marriage with the Veteran in January 1965. 2. The marriage between the appellant and Veteran was lawfully annulled in January 1968. 3. The contesting party, E.P.U., and the Veteran entered into a valid marriage in May 1974. CONCLUSION OF LAW The appellant, B.U.C., is not entitled to recognition as the surviving spouse of the Veteran for purposes of VA benefits. 38 U.S.C. § 101(3) (2012); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist This is a contested claim, since allowance of the appellant's appeal could result in a loss of benefits to E.P.U., whom the RO recognized as the Veteran's surviving spouse. As a simultaneously contested claim, special procedural regulations are applicable. See 38 U.S.C. § 7105A (2012); 38 C.F.R. §§ 19.100, 19.101, 19.102, 20.713(a) (2017). All interested parties will be specifically notified of the action taken by the agency of original jurisdiction in a simultaneously contested claim and of the right and time limit for initiating an appeal, as well as hearing and representation rights. 38 C.F.R. § 19.100. Upon the filing of a notice of disagreement in a simultaneously contested claim, all interested parties will be furnished with a copy of the statement of the case (SOC). 38 C.F.R. § 19.101. When a substantive appeal is filed in a simultaneously contested claim, the content of the substantive appeal will be furnished to the other contesting parties to the extent that it contains information that could directly affect the payment or potential payment of the benefit that is the subject of the contested claim. 38 C.F.R. § 19.102. Further, if a hearing is scheduled for any party to a simultaneously contested claim, the other contesting claimant and their representative, if any, will be allowed to present opening testimony and argument; the appellant will then be allowed an opportunity to present testimony and argument in rebuttal. 38 C.F.R. § 20.713(a). The Board notes that these contested claim procedural requirements were not originally met. The Board remanded the issue to assure compliance with these requirements in September 2010. Indeed, contested claims procedures were completed, to include the mailing of a copy of pertinent documents to each party. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). II. Analysis To establish her status as a proper claimant for VA death benefits, the evidence must show that the appellant was validly married to the Veteran under the laws of the appropriate jurisdiction, and she must also meet the criteria of a surviving spouse. See 38 U.S.C.A. §§ 1311, 1541; 38 C.F.R. §§ 3.1(j), 3.50(a), (b); Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). For VA benefit purposes, a "spouse" is a person who is a husband or wife of the Veteran. The Board notes that on June 26, 2013, the Supreme Court of the United States ruled that Section 3 of the Defense of Marriage Act (DOMA), which limited the definition of marriage to spouses of the opposite sex, is unconstitutional. U.S. v. Windsor, 133 S. Ct. 2675. The President of the United States has accepted the Attorney General's recommendation that the Executive Branch of government, to include VA, cease enforcement of the definitions of "spouse" and "surviving spouse" in Title 38 to the extent that they limit Veterans' benefits to couples of the opposite sex. See also VA O.G.C. Prec. Op. No. 3-2014. A 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 rights to benefits accrued." 38 C.F.R. § 3.1(j). The term "surviving spouse," except as provided in 38 C.F.R. § 3.52, means a person whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the veteran at the time of the veteran's death. 38 C.F.R. § 3.50(b). A surviving spouse must have lived with the veteran continuously from the date of marriage to the date of the veteran's death except where there was a separation that was due to the misconduct of, or procured by, the veteran without the fault of the spouse. 38 C.F.R. § 3.50(b)(1). The term "surviving spouse" means a person: (1) whose marriage to the veteran was valid under the law of the place of residence at the time of the marriage or when the right to benefits accrued; (2) who was the spouse of a veteran at the time of the veteran's death; (3) who lived with the veteran continuously from the date of marriage to the date of the veteran's death (continuous cohabitation); and (4) who, except as provided in 38 C.F.R. § 3.55 , has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C. § 101(3); 38 C.F.R. §§ 3.1(j); 3.50. Generally, a surviving spouse must not have remarried or, since the death of the veteran and after September 19, 1962, lived with another person 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)(2). A surviving spouse may qualify for pension, compensation, or dependency and indemnity compensation under the appropriate circumstances. 38 C.F.R. § 3.54. A marriage can be established by several types of evidence, including a copy or abstract of the public record of marriage, or a copy of the church record of marriage containing sufficient data to identify the parties, the date and place of marriage, and the number of prior marriages if shown on the official record. 38 C.F.R. § 3.205(a)(1). The appellant seeks recognition as the surviving spouse of the Veteran, who died in November 1982. In February 2007, the appellant submitted a marriage contract originating in Manila, Philippines, between herself and the Veteran dated January 1965. Both parties indicated they were single with the Veteran stating his age as 30 and the appellant as 17, respectively. In February 2007, the Veteran's death certificate was received. The Veteran died in November 1982 and, notably, the contesting party was listed as the surviving spouse. In February 2007, the contesting party submitted a statement in support of claim. She stated that the Veteran introduced himself as single. He courted her for two years before getting married. They lived in Chicago after their marriage. She claims she does not know of the Veteran's earlier marriage. She only knew about the appellant when [VA] sent her a letter to determine whether she had knowledge of the Veteran's marriage to the appellant. She went on to state that when they married the second time in Cavite nobody presented themselves as his first spouse. Even when the Veteran died, nobody claimed to be his first spouse during his wake. In February 2007, a decree filed January 1968 in California was received. This decree annulled the marriage between the appellant and the Veteran. In February 2007, a marriage license between the contesting party and Veteran, originating in Cook County, Illinois, was received dated December 1971. In February 2007, a marriage contract between the contesting party and Veteran, originating in Manila, Philippines, was received dated May 1974. Both parties indicated they were single with the Veteran stating his age as 39 and the appellant as 30, respectively. In August 2007, the appellant submitted in affidavit in support of her claim. She stated that she and the Veteran were married on January 18, 1965. His aunt, upon learning of the marriage, allegedly started feigning illness because she feared that the Veteran's support to her would cease. The Veteran left for his ship which was docked in Subic Bay, Zambales in January 1965. At some point in time the Veteran's supposedly live-in partner started harassing the appellant which forced her to stay at home. Subsequently, her parents advised her to just forget the Veteran. While he was abroad, he sent money to her only twice. He wrote only once and promised that they would live together once he returned. The appellant reported that she wrote him several letters but they went unanswered probably because his aunt gave her the wrong address. Sometime in 1969 when he failed to come back and did not give financial support, she were forced to live with an old married man with whom she begat two children. After five years, he died. From then on, she began to take laundry jobs to help support her two little children. At present, she is a nursemaid of a little girl for which she is receiving a meager salary. In July 2008, the Veteran's aunt submitted an affidavit of non-cohabitation. She stated that the Veteran never lived with the appellant as husband and wife after the marriage ceremony. Further, she stated that the marriage was a "shotgun" or "forced" marriage. In a December 2008 Administrative Decision, VA recognized the contesting party as the Veteran's legal surviving spouse for VA purposes. The Board has carefully reviewed the record in this case and concludes that both the annulment between the Veteran and appellant and subsequent marriage between the Veteran and contesting party are valid. The Board is cognizant of the appellant's belief that her marriage to the Veteran was still valid because she never received an indication or notice of the January 1968 annulment. Nevertheless, the Board finds this annulment to be legally valid and thus terminating the marriage between the appellant and Veteran. Further, while the Board finds that the marriage between the Veteran and the appellant was valid under the law of the place of residence at the time of the marriage, as evidenced by the January 1965 marriage contract, this marriage was lawfully annulled in January 1968 and thus the appellant does not meet the requirement of recognition as a surviving spouse for VA purposes. In view of the foregoing, the Board concludes that the preponderance of the evidence is against recognition of the appellant as a surviving spouse for the purpose of receiving VA benefits. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to recognition as the Veteran's surviving spouse for purposes of receiving VA death benefits is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs