Citation Nr: 21026329 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-46 703 DATE: April 30, 2021 ORDER The issue of whether the appellant (R.V.) may be recognized as the Veteran's surviving spouse for Department of Veterans Affairs (VA) purposes is denied. FINDINGS OF FACT 1. The Veteran and the other interested party (L.V.) were married in November 1945. Neither the Veteran nor L.V. ever filed for a formal divorce and that marriage ended by death of the Veteran in August 2015. 2. R.V.’s marriage to the Veteran in December 2003 was not valid because the Veteran was already married. 3. The preponderance of the evidence does not demonstrate that the appellant is a “surviving spouse” of the Veteran. CONCLUSION OF LAW The criteria have not been met for recognition of R.V. as the surviving spouse of the Veteran for the purpose of receiving VA benefits. 38 U.S.C. §§ 101(3), 103, 7105A; 38 C.F.R. §§ 3.1(j), 3.50, 3.53, 3.54, 20.3(l). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1941 to April 1942 and from April 1945 to February 1946. The Veteran died in August 2015. In September 2015, the other interested party (L.V.) filed a claim for Dependency and Indemnity Compensation (DIC), death pension, and/or accrued benefits. In October 2015, the appellant (R.V.) also filed a claim for DIC, death pension, and accrued benefits. In a July 2016 administrative decision, the Agency of Original Jurisdiction recognized L.V. as the Veteran’s legal surviving spouse for VA purposes. An August 2016 AOJ decision awarded death benefits to the other interested party (L.V.). The appellant (R.V) filed a timely notice of disagreement and perfected an appeal to the Board regarding recognition as the Veteran’s surviving spouse. Since there are two individuals claiming to be the Veteran’s lawful surviving spouse and thus eligibility for VA death benefits, this appeal involves a simultaneously contested claim. 38 U.S.C. § 7105A; 38 C.F.R. § 20.3(l). The allowance of the appeal for R.V. to be recognized as the Veteran’s lawful surviving spouse, could result in a denial of benefits to L.V.. The appellant (R.V.) and the other interested party (L.V.) both appeared at April 2018 hearings before the undersigned Veterans Law Judge at the Manila, the Republic of the Philippines, Regional Office. Hearing transcripts are of record. This case was previously remanded for further development. In light of the response received from the Social Security Administration, the providing of adjudicatory documents to both parties, and the further adjudicatory actions taken by the AOJ, the Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). 1. Whether the appellant (R.V.) may be recognized as the Veteran's surviving spouse for Department of Veterans Affairs (VA) purposes This appeal is a simultaneously contested claim. 38 U.S.C. § 7105A; 38 C.F.R. § 20.3(l). In this respect, the allowance of the appellant (R.V.’s) appeal as the Veteran’s lawful surviving spouse could result in a denial of benefits to L.V.. As a contested claim between two appellants (R.V. and L.V.), certain procedural safeguards are in place, associated with VA’s duties to notify and assist. 38 U.S.C. § 7105A; 38 C.F.R. §§ 19.100, 19.101, 19.102, 20.501 20.505, 20.711. Specifically, the AOJ must notify all interested parties of all actions taken by the AOJ and of the right and time limit for initiation of an appeal, and of the right to a hearing and representative. 38 C.F.R. § 19.100. Upon the filing of a notice of disagreement in a simultaneously contested claim, all interested parties and their representatives will be furnished a copy of the statement of the case. 38 C.F.R. § 19.101. When a substantive appeal is filed in a simultaneously contested claim, the content of the substantive appeal will be furnished to the other contesting parties to the extent that it contains information which could directly affect the payment or potential payment of the benefit which is the subject of the contested claim. 38 C.F.R. § 19.102. A party to a simultaneously contested claim may file a brief or argument in answer to a substantive appeal filed by another contesting party within 30 days from the date the content of the substantive appeal is furnished as provided in 38 C.F.R. § 19.102. 38 C.F.R. § 20.503. If a hearing is scheduled for any party to a simultaneously contested claim, the other contesting claimants and their representatives, if any, will be notified and provided an opportunity to present opening testimony and argument. Thereafter, any other contesting party who wishes to do so may present testimony and argument, and the appellant will then be allowed an opportunity to present testimony and argument in rebuttal. 38 C.F.R. § 20.711(a). In the present case, VA has substantially complied with the applicable contested claims procedures discussed above. Both parties have received copies of the applicable adjudicatory documents. Additionally, both parties have submitted statements in connection with their respective claims and attempted to develop the separate DIC claims. Significantly, both parties (R.V. and L.V.) presented testimony before the undersigned Veterans Law Judge in April 2018. The Board is therefore satisfied that VA has provided all assistance required to both contesting parties for the surviving spouse issue on appeal. 38 U.S.C. § 5103A. DIC is a payment made by VA to a surviving spouse, child, or parent because of a service-connected death occurring after December 31, 1956. 38 U.S.C. § 10(14); 38 C.F.R. § 3.5(a)(1). Death pension is available to the surviving spouse of a veteran because of a nonservice-connected death, as long as the veteran served for the required period of time during wartime subject to certain income limitations. 38 U.S.C. §§ 101, 1541; 38 C.F.R. §§ 3.23, 3.3. Accrued benefits, or benefits to which a beneficiary was entitled at the time of death, will be paid to a surviving spouse as provided by law. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a),(d). A spouse is a person whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j). 38 C.F.R. § 3.50(a). VA defines a “marriage” as a marriage valid under the law of the place where the parties resided at the time of marriage, or the laws of the place where the parties resided when the right to benefits accrued. 38 U.S.C. § 103(c); 38 C.F.R. § 3.1(j); Hopkins v. Nicholson, 19 Vet. App. 165 (2005). The term surviving spouse means a person (1) whose marriage to the veteran was valid under the law of the place of residence at the time of the marriage or when the right to benefits accrued; (2) who was the spouse of a 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 (continuous cohabitation); (4) and 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 and held himself or 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). 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. Consequently, surviving spouse status is a threshold requirement for VA death benefits to include DIC benefits. The appellant (R.V. or L.V.) has the burden to show status as a surviving spouse and a valid marriage by a preponderance of the evidence, in order to have standing. Colon v. Brown, 9 Vet. App. 104 (1996); Aguilar v. Derwinski, 2 Vet. App. 21 (1991). If the appellant is not established as a proper claimant, a surviving spouse, the underlying claim cannot proceed. The evidence shows that on November [REDACTED], 1945, the Veteran married L.V. in Quezon City, the Republic of the Philippines, as evidenced by a Marriage Contract. In April 1952, the Veteran filed an original claim for VA benefits. On the claim form, the Veteran indicated that he was married to L.V.. He also stated that they had three children, born in August 1946, November 1949, and October 1951. The Veteran filed a claim for VA benefits in June 1992. On the claim form, the Veteran wrote that his marital status was “separated.” He listed no reason for separation, and he indicated that he did not have any children. In July 2002, the Veteran filed another claim for VA benefits. On that claim form, he indicated that his marital status was “divorced.” He gave no information regarding when he was married, where he was married, whom he was married to, or when his marriage ended. He also indicated that he had two children, born in May 1990 and August 1992, respectively. In July 2002, the Veteran filed a petition for divorce from L.V. with the Superior Court of California, City of Los Angeles. In April 2003, the Veteran submitted VA form 21-686c, Declaration of Status of Dependents. The Veteran indicated that he was married. He gave no information regarding the date and place of marriage or to whom he married. He listed two children, born in May 1990 and August 1992. A Certificate of Marriage shows that the Veteran married R.V. on December [REDACTED], 2003, in Quezon City, the Republic of the Philippines. In April 2003, the Veteran submitted VA form 21-686c, Declaration of Status of Dependents. The Veteran indicated that he married R.V. in December 2003. He stated that he was not married to L.V.. He provided a Joint Affidavit of Cohabitation which stated that the Veteran had lived with R.V. without the benefit of marriage since 1989, and they had two children born in May 1990 and August 1992. In November 2012, the Veteran submitted VA form 21-686c, Declaration of Status of Dependents. The Veteran indicated that he married R.V. in December 2003. He listed two children born in May 1990 and August 1992. On a VA form 21-0820a, Report of First Notice of Death, it was recorded that R.V. telephoned VA and stated that the Veteran died on August [REDACTED], 2015. R.V. indicated that she was the Veteran’s surviving spouse. The Veteran’s official death certificate shows that the Veteran died on August [REDACTED], 2015, in Quezon City, the Republic of the Philippines. The death certificate states that L.V. was the Veteran’s spouse. In September 2015, the other interested party (L.V.) filed a claim for DIC, death pension, and/or accrued benefits. In October 2015, the appellant (R.V.) also filed a claim for DIC, death pension, and accrued benefits. In a July 2016 administrative decision, the Agency of Original Jurisdiction recognized L.V. as the Veteran’s legal surviving spouse for VA purposes. Subsequently, in an August 2016 AOJ decision, death benefits were awarded to the other interested party (L.V.). The appellant, (R.V), subsequently filed a timely notice of disagreement and perfected an appeal to the Board regarding recognition as the Veteran’s surviving spouse. In September 2019, the Regional Trial Court, National Capital Judicial Region, Republic of the Philippines (Court), found the appellant (R.V.) guilty of the crime of bigamy as an accomplice. The Court found that the Veteran married L.V. on November [REDACTED], 1945, and the Veteran married R.V. on December [REDACTED], 2003. The Court found that there was no judicial declaration that the marriage of the Veteran and L.V. was null and void. Therefore, the Veteran was still legally married when he subsequently married R.V.. The Court further found no evidence to prove that the Veteran’s marriage to L.V. had been nullified or dissolved by a competent court. Thus, the marriage to L.V. was valid from the day of its solemnization through the Veteran’s death. The Court made a specific finding that R.V. knew that the Veteran had a valid and existing marriage with L.V.. Although R.V. claimed a lack of knowledge of the Veteran’s marriage to L.V., the Court found R.V.’s statements to not be credible. The Court noted that the children of the Veteran and L.V. often visited R.V.. The Court further noted that R.V. had been the Veteran’s secretary for 15 years prior to their marriage, and as such, it was highly unlikely that she would not to have known of her boss’ civil status. The Court made a finding that R.V. knew as early as 1988 that the Veteran was married to L.V.. The Board notes that the Veteran filed a petition for divorce from L.V. in 2002. However, the evidence of record does not show that the divorce was actually completed. In fact, a Court has found that the Veteran was married to L.V. from November 1945 through the time of the Veteran’s death in August 2015. Because the Veteran was still married to L.V. in December 2003, his second marriage to R.V. initiated in December 2003 is not valid due to a legal impediment. Where an attempted marriage of a claimant to a veteran was invalid by reason of a legal impediment, the marriage will nevertheless be deemed valid if it occurred one year or more before the veteran died or existed for any period of time if a child was born, and the claimant entered into the marriage without knowledge of the impediment, the claimant cohabitated with the veteran continuously until his death, and no claim had been filed by a legal surviving spouse who has been found entitled to death benefits. 38 C.F.R. § 3.52. Here, the Veteran and R.V.’s second (invalid) marriage was entered into in February 2003, more than one year prior to the death of the Veteran, and R.V. and the Veteran had two children. However, the Board finds that R.V. had knowledge of the Veteran’s marriage to L.V.. Although R.V. has claimed to have had no knowledge of the Veteran’s prior marriage, the Board finds that the findings of the Court outweigh those assertions. The Court made findings of fact after hearing testimony from both L.V. and R.V., and the parties were subject to cross examination. The Court specifically found that R.V. knew that the Veteran had a valid and existing marriage with L.V., and the Court gave the reasons it found R.V.’s assertions to not be credible. Therefore, R.V.’s marriage to the Veteran cannot be deemed valid, even if she cohabitated with the Veteran continuously until his death. The Board is sympathetic to R.V. but is bound by the law, which requires that the claim for R.V. to be to be recognized as the surviving spouse of the Veteran must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Layton, 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.