Citation Nr: 18140793 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 16-33 881 DATE: ORDER Entitlement to recognition as the surviving spouse of the Veteran for VA benefit purposes is denied. FINDINGS OF FACT 1. The Veteran and the appellant participated in a marriage ceremony in July 1976 in the Philippines; the Veteran obtained a divorce from the appellant in the state of Washington in March 1992. 2. The Veteran participated in a marriage ceremony with T.J. in June 1992 in the Philippines; the marriage license indicates that he was a divorced citizen of the United States. CONCLUSION OF LAW The appellant is not entitled to recognition as the surviving spouse of the Veteran for VA benefit purposes. 38 U.S.C. §§ 101(31), 103(a) (2012); 38 C.F.R. §§ 3.50(b), 3.52 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1987 to April 1992. He died in September 2013 and appellant asserts that she is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2015 decisional letter issued by the Department of Veterans Affairs (VA) Regional Office (RO) that determined appellant was not entitled to recognition as the surviving spouse of the Veteran. 1. Entitlement to recognition as the surviving spouse of the Veteran for VA benefit purposes The matter at hand stems from a February 2015 determination by the RO that the appellant was not entitled to VA death benefits. The RO denied the appellant’s claim based on a finding that she and the Veteran were divorced and that she was not his surviving spouse. To be entitled to VA benefits as a “surviving spouse” of a veteran, the applicant must have been the veteran’s spouse at the time of the veteran’s death and lived continuously with the veteran from the date of their marriage to the date of his or her death, except where there was a separation due to the misconduct of, or procured by the veteran without the fault of the spouse. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50 (b). The term “spouse” is defined as a person of the opposite sex whose marriage to the veteran is 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 C.F.R. §§ 3.1(j), 3.50(a). The validity of a divorce decree regular on its face will be questioned by VA only when such validity is put in issue by a party thereto or a person whose interest in the claim for VA benefits would be affected thereby. 38 C.F.R. § 3.206. Where the issue is the validity of marriage to a veteran following a divorce, the matter of recognition of the divorce by VA (including any question of bona fide domicile) will be determined according to the laws of jurisdictions specified in 38 C.F.R. § 3.1(j). The record shows that the appellant and Veteran were married in the Philippines in July 1976 and were divorced per a decree entered by a court in Washington state in March 1992. The Veteran remarried T.J. in the Philippines in June 1992. In a VA Form 21-256 received from the Veteran in November 1996, he indicated that he was currently married and had been married three times. He listed his current spouse as T.J. and stated that the marriage took place in June 1992 in the Philippines. He also indicated that his 1976 marriage in the Philippines to the appellant ended in divorce in March 1992. The Veteran died in September 2013; his death certificate notes that he was married at the time of his death and lists T.J.G. as his surviving spouse. According to a death certificate, T.J.G. died in January 2015 without a surviving spouse. Prior to her death, T.J.G. initiated claims for burial benefits and Dependency and Indemnity Compensation (DIC) benefits, which were awarded to her. In September 2014, the appellant initiated a claim for VA death benefits and asserted that she was the Veteran’s legal surviving spouse. Appellant has essentially advanced two arguments as to why she should be considered the Veteran’s legal surviving spouse. First, that his marriage to T.J. was invalid because her marriage to the Veteran had not been annulled or dissolved such that she and the Veteran were still married when he married T.J. In making this argument, appellant consistently reports a date of August 10, 1991, as the date on which the Veteran and T.J. got married, and has attached a document issued at her request from the Office of the Civil Registrar General, which lists three most likely matches for the Veteran in the Philippine National Indices of Marriages. This document lists a July 16, 1976, date of marriage between appellant and the Veteran, which is corroborated by the marriage license of record; an August 10, 1991 date of marriage between the Veteran and T.J., for which there is no supporting marriage license; and a June 2, 1992, date of marriage between the Veteran and T.J., which is corroborated by the marriage license of record. Appellant’s second argument is that assuming arguendo that her marriage to the Veteran was dissolved by virtue of a divorce decree, the divorce issued in the United States is not applicable in the Philippines because the Philippines does not recognize divorce. The Board notes that although appellant has reported to both VA and the Social Security Administration (SSA) that she and the Veteran were never divorced, but instead physically separated by the volcanic eruption of Mount Pinatubo, which the Board notes occurred on June 15, 1991, she has never asserted that the divorce decree issued by the Washington state court was invalid. In a statement made to the SSA, appellant reported that she last saw the Veteran in October 1991, after which he went to the United States and she stayed in the Philippines waiting for the plane ticket he had promised her, which never came. She further asserted that she had not communicated with the Veteran since 1991. The Board notes, however, that the divorce decree issued by the Washington state court in March 1992 references a parenting plan and a separation agreement. Given these references, the Board does not find appellant’s argument that she and the Veteran were not divorced to be persuasive. Article 26 of the Family Code of the Philippines, enacted in 1988, provides, in pertinent part, that where a marriage between a Filipino citizen and foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (As amended by Executive Order 277.) This essentially means that even though divorces by Filipinos are not recognized in the Philippines, divorces by foreign spouses of a Filipino may be recognized in the Philippines. Applying Article 26 of the Family Code of the Philippines to the facts of appellant’s claim, the evidence of record supports a finding that when the Veteran and T.J. were married on June 2, 1992, his March 1992 divorce from the appellant was recognized by the Philippine jurisdiction that issued his marriage license, which is of record and which clearly indicates that the Veteran was a divorced citizen of the United States at the time of his June 1992 marriage to T.J. The Board reiterates that there is no evidence a marriage license was issued for an August 10, 1991 marriage between the Veteran and T.J. As an aside, the Board notes that the Veteran was married and divorced prior to his July 1976 marriage to appellant, and that the marriage licensed issued in the Philippines to appellant and the Veteran clearly indicates that he was a divorced citizen of the United States at the time of their marriage. As such, it appears the Philippines recognized the Veteran’s prior divorce even before the 1988 enactment of Article 26 of the Family Code of the Philippines. It also appears that appellant’s assertion that any divorce issued in the United States is not applicable in the Philippines because the Philippines does not recognize divorce is without merit. Finally, the record reflects that in May 2015, the appellant submitted a September 2014 letter from the SSA advising her that her application for widow’s benefits had been approved. Since the Board is not bound by the findings of SSA, the letter indicating that she is considered the Veteran’s surviving spouse for SSA benefits purposes is not sufficient evidence to establish that she is his surviving spouse for VA benefits purposes. In sum, since the appellant and the Veteran were validly divorced at the time of his death, she may not be recognized as the surviving spouse of the Veteran for VA benefit purposes and this claim must be denied. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel