Citation Nr: 21062221 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 18-27 082 DATE: October 6, 2021 ORDER Entitlement to recognition as the surviving spouse of the Veteran for the purpose of establishing Dependency and Indemnity Compensation (DIC) benefits is granted. FINDINGS OF FACT 1. In May 1986, the Veteran married the appellant (A.P.F.) in Texas. 2. In February 1990, the Veteran and the interested party (E.F.) filed a marriage certificate in Texas; however, the Veteran remained married to A.P.F. at that time, the February 1990 marriage legally was invalid from the onset (void ab initio). 3. In August 1996, the Veteran and E.F. filed another marriage certificate in Texas. 4. The Veteran died in June 2008, while still legally married to A.P.F. 5. A.P.F. is the surviving spouse of the Veteran. 6. E.F. was not the surviving spouse of the deceased Veteran for the purpose of entitlement to DIC benefits because she was never married legally to the Veteran and the actual surviving spouse filed a claim for benefits. CONCLUSION OF LAW The criteria for recognition as a surviving spouse of the deceased Veteran for the purpose of entitlement to DIC benefits have been met. 38 U.S.C. §§ 101, 103; 38 C.F.R. §§ 3.1, 3.5, 3.50, 3.52, 3.53. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1976 to February 1979. He died in June 2008. This matter is on appeal from a December 2017 denial, finding that the appellant was not recognized as the Veteran's surviving spouse. The appellant testified before the undersigned Veterans Law Judge (VLJ) in a March 2020 Board hearing. A complete transcript is of record. The appellant, A.P.F., is seeking to be recognized as the Veteran's surviving spouse. However, an interested party (E.F.), had previously sought and has been recognized by VA as the Veteran's surviving spouse. Since there are two individuals claiming to be the Veteran's lawful surviving spouse (and thus eligible for VA death benefits), this appeal involves a simultaneously contested claim. See 38 U.S.C. § 7105A; 38 C.F.R. § 20.3 (p). In this respect, the allowance of the appellant's (A.P.F.) appeal as the Veteran's lawful surviving spouse, could result in a denial of benefits to E.F., or vice versa. As a contested claim, certain procedural safeguards are in place. See 38 U.S.C. § 7105A; 38 C.F.R. §§ 19.100, 19.101, 19.102, 20.500 - 20.504, 20.713. This appeal was previously before the Board in April 2020. Based on the procedural safeguards, the Board found that additional development was necessary. The Agency of Original Jurisdiction (AOJ) was instructed to contact E.F. to adequately notify her of the contested claim and to provide her with a copy of the appellant's substantive appeal and with the statement of the case (SOC). If a brief, argument, or other evidence was received from E.F., or if otherwise necessary, the AOJ should issue a supplemental statement of the case (SSOC). The AOJ was also instructed to attempt to obtain any relevant police records filed against the Veteran by the Appellant during the course of their marriage as discussed in the February 2020 Board hearing. VA sent E.F. correspondence in July 2020, informing her of the contested claim and provided her a copy of the original notice of disagreement, the SOC, and the substantive appeal. E.F. was invited to send any documentation showing that the marriage to A.P.F. was terminated and any other supportive evidence. She was also informed that she could submit a request for a hearing before the Board. The RO issued a deferred rating decision in August 2020, stating that the appeal was not ready to return to the Board because the July 2020 correspondence did not go to the correct address for E.F. E.F. was sent another correspondence informing her of the contested claim in August 2020, to an updated address. However, the Board notes that VA has not received any response from E.F. Of note, the mail has not been returned as undeliverable, suggesting that E.F. received it. VA also received correspondence from the Nacogdoches Police Department, which stated that a request was made from A.P.F. about a police report from 1986 where she filed charges against the Veteran. However, the correspondence stated that no arrest was made based on the report, and therefore the report from 1986 was no longer available. Here, E.F. was notified of the contested claim and the relevant police records were sought. As such, the Board finds that there has been substantial compliance with the April 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to DIC Benefits The appellant asserts that she was married to the Veteran in 1986 and never divorced, which made any subsequent marriage illegal under the laws of the state of Texas. A surviving spouse is defined as (1) a person in a recognized marriage for VA purposes; (2) who was the spouse of the 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 except, as provided in 38 C.F.R. § 3.53 (a), where there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse; 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 of the opposite sex and held herself out openly to the public to be the spouse of such other person. 38 U.S.C. § 101 (3); 38 C.F.R. § 3.50 (b). An individual who is asserting that she or he is the surviving spouse of the Veteran has the burden to show surviving spouse status by a preponderance of the evidence, in order to have standing. See Colon v. Brown, 9 Vet. App. 104, 107-08 (1996). The threshold question that must be addressed in any claim for VA benefits is whether the person seeking the benefit is a proper claimant for the benefit sought. If the appellant is not established as a proper claimant, the claim can proceed no further. The appellant has the burden to establish her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). Regulations also allow VA to accept an otherwise invalid attempt at marriage as valid if the marriage occurred more than one year prior to the veteran's death or if a child resulted from the marriage; the claimant was unaware of the legal impediment to the marriage; the claimant and veteran cohabitated continuously from the date of marriage until death (except for periods where separation was due to the misconduct of the veteran); and there is no claim by a legal surviving spouse. 38 C.F.R. § 3.52. Historically, E.F. had been recognized as the Veteran's surviving spouse by VA in April 2010. However, in October 2017, the appellant filed her Application for Dependency and Indemnity Compensation and testified before the undersigned VLJ in a March 2020 Board hearing. Here, the central issue from the appellant's perspective is whether she meets the surviving spouse requirement because they had remained married until his death under 38 C.F.R. § 3.53. See also 38 C.F.R. § 3.50 (b)(1). Records show that the Veteran had first married the appellant on May [REDACTED], 1986. The record shows that the Veteran later married E.F. on February [REDACTED], 1990 without first filing for a divorce from the Appellant. VA had contacted the District Clerk's Office for Angelina County, Texas which found no record of any divorce decree between the Veteran and the appellant. The appellant testified at the March 2020 Board hearing that approximately a year after the marriage, she decided to move out from the family home due to the Veteran's violent behavior towards her. She reported subsequently filing a police report against him. The appellant also noted that she had expressed her desire to file for a divorce, but reported that the Veteran was not only uncooperative, but he also allegedly threatened her safety. She stated that since that time she had remained separate from the Veteran primarily due to her fear of potential physical abuse. As previously discussed, there are certain procedural safeguards are in place for contested claims. See 38 U.S.C. § 7105A; 38 C.F.R. §§ 19.100, 19.101, 19.102, 20.500 - 20.504, 20.713. Here, the Board finds that the procedural safeguards have been complied with. For example, the interested party, E.F., was notified of the contested claim and she was furnished a copy of the SOC. 38 C.F.R. § 19.101. She was also notified that she had the right to a Board hearing. However, VA has not received any response from E.F. The RO explained in the July 2017 denial the appellant's claim was denied because the evidence of record showed that a different spouse was listed on the Veteran's death certificate and she (E.F) was recognized as the surviving spouse of the Veteran. A further review of the Veteran's claims file showed that he reported E.F. as his spouse multiple times, on various documents as his spouse up until the time of his death. Section 6.602 of the Texas Family Code states: (a) A marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse. (b) The later marriage that is void under this section becomes valid when the prior marriage is dissolved if, after the date of the dissolution, the parties have lived together as husband and wife and represented themselves to others as being married. After a review of the record, there does not appear to be any evidence that the marriage between the Veteran and A.P.F. had ended or dissolved on any date. The appellant testified that she and her sister searched for a record of divorce, but was unable to do so; she stated the Lufkin County Clerk's office informed her that she was still married to the Veteran. She also noted that she contacted the County Clerk in Nacogdoches, when she was notified that he tried to get a divorce, but the action was dismissed for unknown reasons. Here, the appellant's marriage to the Veteran predates the Veteran's marriage to E.F. As such, the Texas marriage certificates between the Veteran and E.F. are not proof of a marriage because according to Texas law, the later marriage cannot become valid until the prior marriage is dissolved or terminated by the death of the other spouse, neither of which happened here. The Board has taken into consideration 38 C.F.R. § 3.52. However, the evidence of record shows that E.F. only appears to meet two out of the four of the required criteria. Here, E.F. was married to the Veteran for more than one year prior to his death and appears to have cohabitated with the Veteran continuously from the date of their marriage to the date of his death; there has been no assertion to the contrary. Even if the Board were to find that E.F. entered into her marriage without knowing of the legal impediment, specifically the Veteran's ongoing marriage to A.P.F., she would not be able to satisfy the fourth and last requirement under 38 C.F.R. § 3.52. In order for an otherwise illegal marriage to be deemed valid under 38 C.F.R. § 3.52, a legal surviving spouse who has been found to be entitled to death benefits must not have filed a claim for benefits. Here, the appellant, A.P.F., filed a claim to DIC benefits because she was never divorced from the Veteran. See Statement in Support of Claim received October 10, 2017. As such, VA regulations do not allow for the otherwise invalid marriage between the Veteran and E.F. to be recognized as valid. The Board finds that the appellant is entitled to recognition as the Veteran's surviving spouse for the purpose of entitlement to DIC benefits. Although the Veteran and E.F. entered into a marriage in Texas, in February 1990 and in August 1996, their marriage was invalid under Texas law from the beginning, because the Veteran had remained married to A.P.F. As such, E.F. could not be considered the surviving spouse. Although E.F. may have been unaware of any legal impediments to her marriage while the Veteran was alive, VA cannot deem her marriage to be valid under 38 C.F.R. § 3.52, because a legal surviving spouse, A.P.F., who has been found entitled to death benefits, filed a claim for benefits. Here, the evidence of record shows that the Veteran was married to the appellant, A.P.F., in 1986, predating the marriage between the Veteran and E.F., and she supplied documentary evidence and statements regarding her separate living circumstances from the Veteran. Specifically, she testified that she did not abandon the Veteran; instead, she reported that she was subjected to domestic abuse and left. She also testified that she never divorced the Veteran and that he threatened her; he told her he was not going to give her a divorce and that she better not try and get one. Further, she testified that she never remarried, after her separation from the Veteran. The Board finds that the weight of the evidence supports finding that the appellant was the spouse of the Veteran at the time of his death; that their separation was due to the misconduct of the Veteran; and she has not remarried. 38 U.S.C. § 101 (3); 38 C.F.R. § 3.50 (b). Accordingly, the appellant is entitled to recognition as the surviving spouse for the purpose of entitlement to DIC benefits. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.