Citation Nr: 21065277 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-49 819 DATE: October 25, 2021 REMANDED The issue of recognition of the appellant as the surviving spouse of the Veteran for the purpose of establishing entitlement to Department of Veterans Affairs (VA) death benefits is remanded. REASONS FOR REMAND The Veteran had active service from May 1965 to May 1967. The Veteran died in early 2012. The Veteran and the appellant were legally married in February 2012, and she seeks recognition as his surviving spouse for VA death benefits. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a November 2014 decision of a VA Regional Office (RO). In a February 2020 decision, the Board denied the appellant's claim of entitlement to recognition of the appellant as the surviving spouse of the Veteran. The appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2021 Memorandum decision, the Court vacated the February 2020 Board decision and remanded the issue to the Board for consideration consistent with that decision. Entitlement to recognition of the appellant as the surviving spouse of the Veteran for the purpose of establishing entitlement to Department of Veterans Affairs (VA) death benefits is remanded. The question here is whether the appellant meets the criteria to be recognized as the Veteran's surviving spouse for VA purposes. As the Veteran and the appellant were married for less than a year and the marriage occurred more than 15 years after the Veteran's period of service, the appellant may only be entitled to recognition as the Veteran's surviving spouse for VA purposes if a child was born to them before the marriage. 38 U.S.C. § 1304; 38 C.F.R. § 3.54(c). One claiming to be the spouse of a Veteran has the burden to come forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The appellant alleges that she and the Veteran had a son, A., and a daughter, L. Both A. and L. were born before the date of the appellant's marriage to the Veteran, and the Veteran was not listed as their father on their birth certificates. Thus, the appellant appears to be alleging that A. and L. may be the Veteran's illegitimate children. See 38 C.F.R. § 3.57(a). Where the child in question is considered an "illegitimate" child pursuant to VA's regulations, the law sets forth several avenues to substantiate the relationship between the child and the Veteran. Such proof may consist of: an acknowledgement in writing signed by the father; evidence that the father has been identified as the child's father by a judicial decree ordering him to contribute to the child's support or for other purposes or; or any other secondary evidence which reasonably supports a finding of relationship, as determined by an official authorized to approve such findings. 38 C.F.R. § 3.210(b). Examples of such secondary evidence that could support a finding of relationship include: a copy of the public record of birth or church record of baptism, showing that the veteran was the informant and was named as parent of the child; statements of persons who know that the veteran accepted the child as his; information obtained from service department or public records, such as school or welfare agencies, which shows that with his knowledge the veteran was named as the father of the child. As noted in the Court's April 2021 Memorandum decision, the record contains a VA note from May 2014 indicating that A. "appears to be the Veteran's kid SSI under vets [number]." This indicates that A. may be receiving benefits from the Social Security Administration (SSA) based on his relationship with the Veteran. To date, VA has not obtained any SSA determinations or related records. Because the issue of whether A. or L. are receiving SSA benefits based on their relationship with the Veteran is potentially relevant to VA's adjudication of this claim, VA is obliged to attempt to obtain and consider those records in adjudicating this appeal. In addition, the claims folder contains a November 2008 rating decision indicating that the Veteran applied for VA disability benefits in April 2008. The Board notes that some disability claim forms asked for information about the Veteran's dependents, including children. However, the claims folder does not contain any such claim, or any documents dated prior to the November 2008 rating decision. The Board finds this to be persuasive evidence that the Veteran's claims folder is incomplete. Thus, remand is required to obtain and associate with the claims folder any missing documents, including the Veteran's April 2008 claim for VA disability compensation benefits. The matters are REMANDED for the following action: 1. Request from SSA any and all records pertaining to the Veteran, including any SSA administrative decisions and related records indicating that a child, including A. and/or L., is receiving SSA benefits based on their relationship with the Veteran. If the records are not available, that should be documented in the record and the appellant should be notified of the unavailability of the records. 2. Obtain and associate with the claims file any missing documents dated prior to November 2008 that are related to the current claim for recognition of the appellant as the Veteran's surviving spouse, including the Veteran's April 2008 claim for VA disability compensation benefits. All attempts to obtain this evidence should be documented, including any efforts to rebuild the file. If the evidence is unavailable, a formal finding of unavailability should be sent to the appellant, and a copy should be associated with the record. 3. Then, readjudicate the issue on appeal. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, Counsel The Board's decision is only binding in this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.