Citation Nr: 21068582 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-56 132A DATE: November 10, 2021 REMANDED Entitlement to recognition of the appellant as the Veteran's surviving spouse for the purpose of establishing eligibility for Department of Veterans Affairs (VA) benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1951 to December 1974. Unfortunately, he died in February 2016. The appellant contends that she is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 decision of a VA Regional Office (RO). In November 2019, the Board remanded this matter for additional development. Unfortunately, another remand is necessary prior to adjudication on the merits. Entitlement to recognition of the appellant as the Veteran's surviving spouse for the purpose of establishing eligibility for VA benefits is remanded. The appellant seeks to be recognized as the Veteran's surviving spouse for the purpose of eligibility for VA benefits. When a veteran dies, his or her surviving spouse may be eligible to VA death benefits, to include DIC benefits, death compensation and death pension. See 38 U.S.C. §§ 1121, 1310, 1541; 38 C.F.R. § 3.50(a). In cases involving alleged common-law marriages, there must be proof of a common-law marriage for the purpose of receiving VA benefits. Supporting evidence of common-law marriage should include affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage , . 38 C.F.R. § 3.205(a). In addition, where an attempted marriage (common-law) is invalid by reason of legal impediment, VA regulations allow for certain attempted marriages to be nevertheless "deemed valid" if specific legal requirements are met. Basically, such an attempted marriage will be "deemed valid" if: (a) the attempted marriage occurred one year or more before the veteran died; and (b) the claimant entered into the marriage without knowledge of the impediment; and (c) the claimant cohabited with the veteran continuously from the date of the attempted marriage until his death; and (d) no other claimant has been found to be entitled to gratuitous VA death benefits. 38 C.F.R. § 3.52. If the provisions of 38 C.F.R. § 3.205(a) are satisfied as well as those of 38 C.F.R. § 3.52, the claimant's signed statement that she had no knowledge of an impediment to a marriage to the veteran will be accepted as proof of the fact, in the absence of information to the contrary. 38 C.F.R. § 3.205(c). The term "legal impediment" was interpreted in an opinion of VA Office of the General Counsel, VAOPGCPREC 58-91, to include the requirement of a marriage ceremony by a jurisdiction which does not recognize common-law marriages. 56 Fed. Reg. 50151 (1991). The Court of Appeals for Veterans Claims (Court) has issued pertinent directives in this regard in Colon v. Brown, 9 Vet. App. 104 (1996). Specifically, the appellant must be given an opportunity to submit a signed statement pursuant to 38 C.F.R. § 3.205(c), indicating that she had no knowledge of an impediment to the marriage. The Court indicated that if the appellant was unaware of the impediment, then an otherwise invalid common-law marriage could be deemed valid. The Court has held that Article 34 of the New Family Code of the Philippines does not allow common-law marriage in the Philippines. See Sandoval v. Brown, 7 Vet. App. 7, 10 (1994). The lack of recognition of common-law marriage in the Philippines is therefore a legal impediment. See Lamour v. Peake, 544 F.3d 1317, 1321-22 (2008); Colon, 9 Vet. App. at 104. In a November 2020 statement, the appellant stated that she had no knowledge of an impediment to her marriage to the Veteran during their 28 year relationship. She stated that she and the Veteran had a mutual agreement to live together as husband and wife from December 1988 until his death in February 2016. She did not realize until informed by VA that common law marriages were not recognized in the Philippines, where they resided. Based on this statement, the Board finds that the appellant was unaware of the legal impediment to her marriage to the Veteran at the time they entered into the common law marriage. However, in order for a common law marriage to be established for VA purposes, 38 C.F.R. § 3.205(a)(6) requires two or more affidavits or certified statements from persons who know as the result of personal observation the reputed relationship which existed between the appellant and the Veteran, including the periods of cohabitation, places of residences, whether the parties held themselves out as married, and whether they were generally accepted as such in the communities in which they lived. The appellant has only submitted one such statement. See May 2017 statement from O.M. Therefore, remand is warranted to provide the appellant with the opportunity to provide the second statement from a person regarding their personal observations of the reputed relationship which existed between the appellant and the Veteran, as is required under 38 C.F.R. § 3.205(a)(6). The matters are REMANDED for the following action: 1. Ask the appellant to submit an affidavit or certified statement from a person, other than herself and O.M., regarding their personal observations of the reputed relationship which existed between the appellant and the Veteran, including the periods they lived together, places of residences, whether the Veteran and appellant held themselves out as husband and wife, and whether they were generally accepted as such in the communities in which they lived. 2. Then, readjudicate the issue on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, 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.