Citation Nr: 18147838 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 15-27 391A DATE: November 6, 2018 ORDER New and material evidence has not been submitted to reopen a claim of entitlement to recognition as the Veteran's surviving spouse for purposes of VA dependency and indemnity compensation (DIC), death pension benefits, and accrued benefits, and the claim is not reopened. FINDINGS OF FACT 1. A November 2006 decision and subsequent May 2007 statement of the case, issued by the VA Regional Office in Manila, the Republic of the Philippines (RO), denied the appellant's application for entitlement to recognition as the Veteran's surviving spouse. The veteran did not appeal the November 2006 decision to the Board in a timely fashion and the November 2006 decision became final. 2. Evidence submitted since the November 2006 decision and May 2007 statement of the case is not material as it is merely cumulative of evidence considered at the time of the previous final decision. CONCLUSION OF LAW Evidence received since the November 2006 decision and May 2007 statement of the case is not new and material, and the claim for entitlement to recognition as the Veteran’s surviving spouse is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served from January 1969 to July 1969. The Veteran died in December 2004. The appellant seeks surviving spouse benefits. Whether new and material evidence has been submitted to allow for the reopening of entitlement to recognition as the Veteran's surviving spouse In a November 2006 decision, the RO denied the appellant’s application for entitlement to recognition as the Veteran's surviving spouse. Although the appellant initially filed a notice of disagreement regarding the RO’s decision, she did not subsequently file a timely appeal to the Board after the issuance of a May 2007 statement. Therefore, the November 2006 decision became final. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Therefore, before reaching the issue of whether service connection is warranted, the Board must first determine whether the claim may be reopened. 38 U.S.C. § 5108; Elkins v. West, 12 Vet. App. 209; 38 U.S.C. § 5108; Hodge v. West, 155 F.3d 1356. New and material evidence means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The appellant claims entitlement to recognition as the Veteran's surviving spouse for the purpose of receiving death benefits. Death benefits are payments made by VA to a surviving spouse because of a service-connected death occurring after December 31, 1956. 38 U.S.C. § 101(14); 38 C.F.R. § 3.5(a)(1). Spouse is defined as a person whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j). C.F.R. § 3.50(a). Marriage is defined as 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 U.S.C. § 103(c); 38 C.F.R. § 3.1(j). A valid marriage may be established by various types of documentary evidence together with the claimant's certified statement concerning the date, place and circumstances of dissolution of any prior marriage, provided that the facts, if they were to be corroborated by the evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205(a). A surviving spouse is defined as a person who was the spouse of the Veteran at the time of the Veteran's death and who (1) lived with the Veteran continuously since the time of the parties' marriage to the date of the Veteran's death, unless there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse, and (2) except as provided in 38 C.F.R. § 3.55 (pertaining to certain terminations of subsequent marriages), has not remarried and has not held himself or herself out to the public as the spouse an individual with whom he or she was then cohabiting. 38 C.F.R. § 3.50(b). Under New York state law, a marriage is void, and thus of no legal effect, if either participant has a spouse who is still living at the time of the marriage, unless the prior marriage has been either annulled or dissolved. N.Y. Dom. Rel. Law § 6. Initially, in order to determine if new and material evidence has been submitted, the Board must review the evidence of record prior to the RO’s most recent decision. In the mid-1970’s, the appellant, a citizen of the Philippines, completed a ceremony marriage ceremony with M.E.in the Philippines. The date of the ceremony is listed variously on various documents, to include the appellant’s children’s birth certificates, as having occurred in either June 1975, June 1976, July 1977, or June 1978. However, birth certificates, denoting the births of the appellant and M.E.’s children in February 1980, March 1982, and September 1989, respectively, state that the appellant and M.E. were married. In legal documents dated August 1995, indicating a transfer of title to land, M.E. lists himself as being married to the appellant. The appellant entered the United States on a temporary visa in April 1999. The records indicate that the visa was to expire on October 1999. After the appellant requested an extension for her visa, the appellant was granted an extension until April 2000. Subsequent to her entry into the country, the appellant met the Veteran. She subsequently completed a September 1999 marriage ceremony with him in Syracuse, New York. The appellant and the Veteran submitted a marriage certificate with the state of New York subsequent to the ceremony. Prior to the expiration of her temporary visa, the appellant submitted a petition for an immediate relative immigrant visa with the United States Department of Justice, Immigration and Naturalization Service (INS). In a September 2000 decision, an INS director denied the petition. In explaining the reasoning for that decision, the director stated that the appellant had failed to establish that she was not married to M.E. at the time of her marriage to the Veteran. The appellant did not appeal that decision in a timely manner and, in October 2000, an INS district director issued a decision denying the appellant’s application for status as permanent resident. As a result of the INS decision, INS began proceedings to remove the appellant from the country. As part of those proceedings, the appellant was given the opportunity to plead her case for remaining in the country before an immigration judge. In a July 2003 oral decision, the judge wrote that, although the appellant had been served with a notice to appear at 9:00 a.m. to plead her case before that judge in Buffalo, New York, the appellant had not appeared by 9:36 a.m. As a result, the judge decided to proceed in absentia and ordered the appellant removed from the country. The appellant subsequently returned to the Philippines in approximately May 2004. While she was in the Philippines, the Veteran died in December 2004. In order to qualify as the Veteran's surviving spouse under New York law, the evidence must demonstrate that the appellant was not married to anyone else when she married the Veteran in September 1999. Prior to the issuance of the May 2007 statement of the case, the appellant submitted evidence in an attempt to prove that she was not married to M.E. at the time of her marriage to the Veteran. In a December 2004 application for DIC benefits, the appellant stated that she had married M.E. in the 1970s. When asked to provide information on how her marriage to M.E. ended, she wrote by separation in 1991. The appellant also wrote that she lived continuously with the Veteran from the date of her marriage until June 4, 2004. Because the Veteran planned to live with her in the Philippines, she stated that she went back to that country ahead of the Veteran to prepare a place for them. However, the Veteran died of a heart attack in Syracuse in in December 2004. In January 2005, the appellant submitted a document from a clerk in the municipality in which she married M.E., stating that there was no record of marriage for M.E. and the appellant in June 1975. With the document, the appellant included a note, stating that, while she underwent a marriage ceremony with M.E., the required paperwork was never submitted. She further reported that she lived together with M.E. for 13 years. In February 2005, the appellant submitted a copy of a document from the National Statistics Office in Manila, the Philippines, stating that her marriage with M.E. did not appear in the National Indices of Marriage for Bride. Despite her contentions that she had never married the appellant, in February 2005, the appellant also submitted a document labelled an “Affidavit of Annulment.” On that document, the appellant and M.E. both declared that they were legally married and had lived together for 16 years. They stated that they had applied for an annulment in March 1993 due to “Incapability” and reported that the annulment was granted in November 1999. The affidavit was signed by a Notary Public who swore that both M.E. and the appellant had personally appeared before him at the time of his signing in November 1999. Of note, in November 1999, the appellant was living with the Veteran in the United States. The appellant in her various statements indicated that she stayed in the United States from the date of her entry into the country in April 1999 until her departure in 2004. In a Questionnaire for Family Petition submitted to INS in 1999 and filed with VA in July 2005, the appellant reported having married M.E. in the Philippines in July 1977. The appellant further stated that the marriage had been terminated in Manila in June 1999, while she was residing in the United States. In July 2005, VA acquired a copy of a Joint Affidavit of Legal Separation, reportedly signed by the appellant and M.E. in June 2000. On that document, the parties indicated that they were husband and wife. They also reported having lived together for 16 years. They also stated that they had agreed to separate due to incompatibility and that an annulment of their marriage was approved in June 1999. On that document, a notary republic in Manila indicated that both the appellant and M.E. had appeared before him on June 30, 2000, to sign the document. Again, the appellant, by her own admission, was residing in the United States after the expiration of her temporary visa in November 2000. In September 2005, the appellant submitted a document labelled a Decision of the “Declaration of Nullity of Marriage,” purportedly from a regional trial court in Manila. In that document, the author indicated that M.E. was served a summons in February 1999, but did not file any responsive pleading. The author indicated that the appellant and M.E. were married, but the marriage was an unhappy one, because M.E. was fond of being away from home without concern for the appellant or the children. The author further stated that, in February 1993, M.E. abandoned the appellant and the children by packing his belongings and never returning. The author then stated that, due to M.E.’s actions, the court was declaring the marriage null and void as of the date of signing, June 28, 1999. In February 2007, the appellant submitted a copy of a document from the National Statistics Office in Manilla, stating that the office did not have any record of a marriage between the appellant and M.E. In a March 2007 VA Decision Review Officer (DRO) informal hearing report, the appellant stated that, when she was young, she was forced by her father to marry M.E. She indicated that she requested that a judge perform the marital rites, but, because the judge was unavailable, the parties had a celebration at home. The appellant indicated that it was everyone’s understanding at the time that the appellant and M.E. were married. She stated that, when she applied for a temporary visa in 1999, she told INS that she was single, because she was aware already that she had never been legally married to M.E. When asked to discuss the existence of the 1999 annulment document in light of her statements, she stated that she requested an annulment, because someone advised her to take that action and she did not know any better. In an April 2007 affidavit, the appellant indicated that she wished to explain the existence of the Joint Affidavit of Legal Separation purportedly signed by herself and M.E. in June 2000. The appellant wrote that, in 2000, INS had denied her application for a permanent resident visa, because she could not prove the legal termination of all previous marriages. The appellant stated that, as a result, she filed the affidavit, which stated that “we were never married in Civil rites.” The appellant indicated that the document was signed by M.E., her “former common law husband” in Manila and then forwarded to the appellant in New York for her signature. In the affidavit, the appellant did not explain why the notary indicated that both signatories signed in the notary’s presence in the Philippines. In April 2007, the appellant also submitted an additional affidavit. In that document, the appellant and M.E. wrote that, even though some documents stated that they once were married, they had never been married, but had lived together as “common law husband and wife.” Based on that evidence, the RO denied the appellant’s claim for recognition as a surviving spouse. The RO noted that the appellant had provided conflicting evidence in order to prove that she was unmarried at the time of her marriage to the Veteran. The RO indicated that, although the appellant contended that she never married M.E., she still submitted documents indicating that she sought an annulment to their marriage. The RO noted that an annulment would have been unnecessary had the appellant not married M.E. The RO found the appellant’s evidence indicating that she was not married to M.E. at the time of her marriage to the Veteran to be unconvincing and denied her claim. Briefly reviewing the evidence submitted since the RO’s issuance of the May 2007 statement of the case, in a June 2008 affidavit of law, a lawyer stated that the appellant was unmarried at the time of her marriage to the Veteran, based on her statement and the documents previously submitted to VA. The lawyer also stated that the judge who the appellant claimed solemnized her marriage to M.E. was not legally allowed to perform marriages at the time of the ceremony. In a June 2008 statement, the same lawyer stated that the appellant was never married legally to M.E. and was, in legal terms, a “common law partner.” That lawyer wrote that the appellant went through with the “marriage” to M.E. only because she was forced to do so by her father. The lawyer stated that no paper was necessary to end the appellant’s marriage to M.E., because it was never a legal marriage. In October 2008, the appellant submitted a transcript, written by INS, recording a sworn statement made by appellant before an INS officer at the Detroit Airport on December 15, 2004. In that statement, the appellant reported entering the United States to attend the Veteran's funeral in Syracuse. She stated that she was intending to stay in the country for two weeks, but did not have a return ticket for a flight to the Philippines. When asked how much money she had, she indicated that she had 39 dollars. When asked how she would get the money necessary for a ticket, she stated that she would sell all of her possessions. When asked if she had an INS waiver to allow her to enter the United States, she indicated that she could not remember. When asked if she had ever applied for such a waiver, the appellant denied applying. The appellant stated that she had been ordered deported from the United States in 2003 and had left the country on June 4, 2004. When asked why she was travelling with her high school diploma, resume, and other documents, she replied that she had not checked to see what was in her bag before she left the Philippines. After taking her statement, the officer ordered the appellant’s removal from the United States, prohibiting her from reentering for a period of 20 years. In a May 2009 statement, the appellant wrote that her father forced her to undergo a marriage ceremony with M.E. at the house of a judge. She stated that the marriage was a nightmare, because M.E. forced himself on her. She stated that she started her own business in retail selling footwear. After a fire destroyed her inventory in either 1990 or 1991, she left M.E., taking her children with her. She indicated that, in 1998, her aunt returned to the Philippines from the United States and encouraged the appellant to seek a United States business visa so that she could start a company with her American relations in Syracuse. The appellant stated that she applied and, having met the requirements, was given a multi-year visa for the years 1999 through 2009. The appellant indicated that, after she arrived in the United States, she found it difficult to start a company. However, during that time, she stated that she was preoccupied, as she met and fell in love with the Veteran. She indicated that she did not have problems with INS until the Veteran submitted an application requesting permanent residency status for her. She stated that the Veteran sought to have the Philippines annul her marriage to M.E. and that, after an annulment document was sent from the Philippines, she signed it before a notary in Syracuse in November 2002. She stated that she now understood that her first marriage was not legal and the annulment was useless. She stated that she was 30 minutes late to the July 2003 hearing before the immigration law judge in Buffalo, New York, who tried her in absentia, because her car developed a flat tire on the way to the hearing. She stated that, because she missed that hearing, she was deported. She stated that she left the country in June 2004 and only attempted to return when she learned that her husband had died. In October 2013, the appellant submitted a March 2013 document from the National Statistics Office in Manila, stating that the office did not have any record of a marriage between the appellant and M.E. The appellant also submitted a January 2007 certification from a Court Administrator in Manila, stating that the person who purportedly performed the marriage ceremony between the appellant and M.E. resigned his position as a justice of the peace in September 1975. In an April 2014 sworn statement, the appellant again wrote that she did not have difficulty with INS until she applied for permanent residency after he marriage to the Veteran. She stated that she had the proper paperwork proving the annulment of her marriage to M.E. in her possession while she was travelling to the July 2003 hearing before the immigration law judge in Buffalo, New York. Unfortunately, because the car in which she was travelling developed a flat tire on the driver’s side, she was a half-hour late to the hearing. At that time, her lawyer told her that she would be given removal papers. She stated that she was never given an opportunity to explain her tardiness. In an August 2015 statement, included with the substantive appeal to the Board, the appellant reported having no contact with M.E. between 1993 and 1999. At an April 2018 Travel Board hearing, the appellant stated that she had the correct documents to present to the immigration judge in July 2003, but was unable to do so due to a flat tire. She indicated that she was advised to appeal that decision. However, she and the Veteran decided instead to live together in the Philippines. Having reviewed the evidence submitted since the issuance of the May 2007 statement of the case, the Board finds that it is new, because it was not of record at the time of the issuance of the statement of the case. However, the Board finds that it is not material, because it is either irrelevant or merely cumulative of evidence already of record at the time of the issuance of the statement of the case or is so contradictory as to be of no probative value in this matter and to be inherently incredible. In October 2008, the appellant submitted a copy of a sworn statement she gave before an INS officer at an airport in Detroit. Although the statement proves that the appellant attempted to enter the country soon after the Veteran's death and subsequently was barred from reentering for 20 years, the statement itself is irrelevant as it does not show that the appellant was not married to M.E. at the time of her marriage to the Veteran. In other statements, the appellant revealed a tendency to make claims that are contradictory, and thus inherently incredible. For example, in a May 2009 statement, the appellant indicated that she was awarded a multi-year business visa that would have allowed her to remain in the United States from 1999 through 2009. The Board notes that statement is inherently false, because, were it true, the appellant would not have been ordered to leave the country for overstaying a visa that expired in April 2000. Although those statements are irrelevant in determining whether to reopen the appellant’s claim, they are illustrative of the appellant’s lack of veracity. Caluza v. Brown, 7 Vet. App. 498 (1995). Reviewing the potentially relevant evidence, in various recent statements, the appellant has contended that her marriage to M.E. was invalid, because the judge who purportedly presided over the marriage ceremony did not have the legal power to marry individuals. The appellant has also stated that her father forced her to undergo the nonbinding ceremony at the judge’s house against her will. The appellant has submitted documents, indicating that the individual she claimed presided over her marriage to M.E. had no authority to perform marriages after September 1975. The Board finds that the newly submitted evidence is cumulative and, therefore, not material. Prior to the issuance of the May 2007 statement of the case, the appellant made similar statements and provided similar evidence, indicating that her marriage to M.E. was invalid, because the rite was not performed by an individual empowered to perform such a ceremony. In a March 2007 VA Decision Review Officer informal hearing report, the appellant stated that her father forced her to marry M.E. She stated the parties had a celebration at home, because a judge was not available at the time. The appellant indicated that it was everyone’s understanding at the time that the appellant and M.E. were married, despite the lack of a judge, but she learned that she was not legally married to M.E. by the time she travelled to the United States. In April 2007, the appellant submitted an additional affidavit, signed by herself and M.E., in which both swore that they had never married, but had lived together as “common law husband and wife.” The appellant has also submitted documents from archives in the Philippines, indicating that they did not have any record of the appellant’s marriage. As the appellant previously presented evidence indicating that her marriage to M.E. did not occur or was invalid because it was not performed by an individual empowered to perform that rite, the new evidence is cumulative of evidence already of record and, therefore, is immaterial. Parenthetically, the Board notes that, were the Board to reopen the appellant’s claim, the preponderance of the evidence would weigh against it. The appellant has submitted multiple purportedly legal documents from the Philippines that contradict each other. For example, the file contains a document indicating that the parties signed a document in which they agreed to be legally separated in June 2000, even though another document suggested that the marriage was nullified in June 1999. Although the appellant claims that she signed some of these documents in the United States, each document contains a statement from a notary, indicating that the appellant signed in the notary’s presence in Manila. As a result of that contradictory evidence, in part, an INS official denied the Veteran's petition for a permanent visa, stating that that the appellant had failed to establish that she was not married to M.E. at the time of her marriage to the Veteran. The appellant’s new evidence, consisting of statements and documents very similar to those previously made, are insufficient to persuade the Board to disagree with the INS official’s findings. The Board finds that new and material evidence has not been submitted to reopen a claim of entitlement to recognition as the Veteran's surviving spouse for purposes of VA dependency and indemnity compensation (DIC), death pension benefits, and accrued benefits, and the matter is not reopened. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.M. Gillett, Counsel