Citation Nr: 21026783 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-03 437A DATE: May 4, 2021 ORDER An effective date earlier than February 9, 2011, for the award of dependency and indemnity compensation (DIC) benefits, is denied. FINDINGS OF FACT 1. The Veteran died in June 1973 during active duty service; at that time, the appellant was married to the Veteran and as his surviving spouse started receiving DIC benefits. 2. A marriage certificate issued by the County of Los Angeles, shows that the appellant married J.E.J. (E.J.) in October 1997. 3. In September 1999, the appellant submitted a marital status questionnaire (VA Form 21-0537), indicating she had not remarried since the death of the Veteran. 4. In May 2005, after receiving no response from the appellant to the March 2005 letter advising her of a proposal to terminate DIC benefits because a marriage certificate had been received showing she remarried in 1997, the Regional Office (RO) notified the appellant that DIC benefits were terminated, effective October 1, 1997. 5. On February 9, 2011, the appellant submitted a claim to reinstate her DIC benefits, and subsequently submitted documentation confirming that her marriage to E.J. in October 1997 was void. CONCLUSION OF LAW Entitlement to an effective date earlier than February 9, 2011, for the award of DIC benefits, is not warranted. 38 U.S.C. §§ 1311, 5110; 38 C.F.R. §§ 3.55, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from March 1973 to June 1973. The Veteran died in June 1973. The appellant is the Veteran's surviving spouse. In February 2021 the appellant testified at a virtual tele-hearing before the undersigned Veterans Law Judge (VLJ). Entitlement to an effective date earlier than February 9, 2011, for the award of DIC benefits. The appellant contends she should be entitled to an effective date earlier than February 9, 2011, for the reinstated award of DIC benefits. Generally, the effective date of an award of DIC which is based on an original claim or a reopened claim shall be fixed in accordance with the facts found, but not earlier than the date of receipt of claim therefor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an award of DIC will be the first day of the month in which the death occurred if the application is received within one year from the date of death; otherwise, date of receipt of claim. Id. By way of history, the Veteran died in June 1973 during active duty service. As the appellant was married to the Veteran at the time of his death, she started receiving DIC benefits as his surviving spouse. In September 1999, the appellant completed a marital status questionnaire, indicating she had not remarried since the death of the Veteran in June 1973. Received in March 2005 was a marriage certificate issued by the County of Los Angeles, showing that the appellant had married E.J. in October 1997. In a March 2005 letter, the RO notified the appellant that they proposed to stop her DIC payments effective October 1, 1997, because VA had received evidence showing her marital and/or dependency status had changed, noting that the evidence supporting the proposed termination was a copy of a marriage certificate showing the appellant remarried in October 1997. The appellant was advised that she had 60 days to submit evidence showing that this adjustment should not be made. In letter dated May 10, 2005 letter, after receiving no response from the appellant, the RO advised the appellant that her award of DIC benefits was terminated based on the receipt of the marriage certificate showing she had remarried in October 1997. The RO further advised the appellant that this action had resulted in an overpayment of benefits. On February 9, 2011, the appellant submitted a claim to reinstate her DIC benefits, which was denied initially because the appellant did not respond to requests for information about whether her remarriage to E. J. was legal/not valid and whether she had been married to anyone since the death of the Veteran. Thereafter, in a May 2011 statement the appellant indicated she had not married again after June 30, 1997, and that she was submitting paperwork to show she was not married to E.J. and that the marriage was void and she was not legally married to him. In a December 2011 letter, the RO advised the appellant that her claim for DIC, death pension, and accrued benefits, had been denied, noting that in April 2011 they sent her a letter requesting that she submit a certified copy of the legal documentation showing that her marriage to E.J. was not legal and never valid, and that she report whether she had married anyone else since the death of the Veteran. The RO indicated that because they had not received this information, her claim was denied. She was also advised she had until April 26, 2012 to submit the requested evidence for her original claim to still be processed. Received in January 2012 from the appellant was a notice of disagreement, in which she indicated she was enclosing the information requested regarding her marriage to E.J., showing the marriage was never legal and that she had enclosed a legal document showing that E.J. was married at the time. She contended that during their relationship, E.J. was mentally and physically abusive, and that she was homeless at the time, which caused her to be very unstable and have severe problems with decision making and severe bouts of depression. She also indicated she was sending a notarized statement showing her marriage was voided. She stated that her marriage to E.J. was not valid and her benefits should be reinstated. In January 2012, the appellant submitted a memorandum from her public defender regarding a federal criminal proceeding in which she was indicted for theft of government benefits due to her continuing to receive surviving spouse DIC benefits after marrying E.J. in 1997. In the memorandum it was noted that at the November 2010 trial, the government moved to dismiss all charges against her; but before granting the motion, the Court inquired as to the basis for the motion and the exculpatory evidence. In the memorandum the defense advised that E.J. was married to C.J. at that time he purported to marry the appellant in 1997, and that although C.J. had filed for divorce from E.J., a judgement of dissolution was never entered, and the marriage between E.J. and C.J. was never dissolved. In January 2014, the appellant submitted a copy of Criminal Minutes of Trial, U.S. District Court, Central District of California, signed by the deputy clerk, and dated in November 2010. Therein, it was noted that on the second day of a jury trial for the criminal proceeding involving the appeal, the government moved to dismiss the case in its entirety and the motion was granted. In October 2019, the RO issued a decisional letter, finding that the appellant's DIC benefits should be resumed, effective March 1, 2011, which was the first of the month after the date the RO received the appellant's claim for reinstatement of DIC benefits (in February 2011). The RO noted that DIC benefits were resumed because the appellant had submitted the required evidence showing her marriage to E.J. was not legally valid. After review of the record, the Board concludes that an effective date earlier than February 9, 2011, is not warranted. As noted above, the appellant did not respond to either the RO's March 2005 letter regarding a proposal to terminate DIC benefits, or the May 2005 letter advising her that DIC benefits were terminated. After that, it was not until February 9, 2011 that the appellant sent a request to reinstate her DIC benefits. Turning to the question of whether the appellant submitted a formal or informal claim to reinstate DIC benefits prior to February 9, 2011, the Board finds that she did not, under either 38 C.F.R. § 3.155 or § 3.157. Review of the record shows nothing was submitted prior to February 9, 2011, to indicate the appellant intended to file a claim for reinstatement of her DIC benefits. Rather, the first indication she intended to file such a claim was when her claim was received on February 9, 2011. The Board also notes that the appellant has not otherwise contended she filed a claim prior to February 2011. In that regard, the record shows the criminal indictment against the appellant was not dismissed until November 2010, and at the 2021 hearing, the representative noted that in 2011 the appellant filed the claim to reinstate her benefits. Because the effective date of a reopened (reinstated) DIC award may not be earlier than the date of receipt of claim therefor, the Board concludes that an effective date earlier than February 9, 2011, is not warranted. In considering the appellant's claim, the Board notes that her primary contention is that because her marriage to E.J. was void, she should be entitled to and receive DIC benefits prior to February 9, 2011. Specifically, at the February 2021 Board hearing, the appellant testified she was granted DIC benefits as the Veteran's surviving spouse after he died in service in 1973. She testified that she did not remarry until 1997, but indicated this marriage occurred under false pretenses and deceptive circumstances. The appellant testified she did not find out that E.J. was already married until about 6 months later. She testified that when they got married, E.J. told her he had never been married before, and she told him that if she married him, she would need to report it to the Army as soon as she got married. She testified that E.J. asked her to give it more time and not report the marriage, but she told him she could not do that. She testified that in 2005 someone told VA about her remarriage and she was charged for theft of VA benefits, but that the Court ended up dismissing the charges once they determined it was a fraudulent marriage. The appellant's representative noted that in February 2011, the appellant filed a claim to reinstate her benefits. The appellant contended there should be a distinction between termination and voided, and that because the marriage to E.J. was voided, and she was found to be never legally remarried, then she should still have been in receipt of benefits from 2005 to 2011. The Board observes that it is clear from the appellant's testimony that when she married E.J. in October 1997, she was aware she needed to report this marriage to VA, but failed to do so. Her reasons for not reporting this to VA include that E.J. told her to wait to do this, which is not a valid reason for failure to disclose this information. Rather, she continued to receive DIC benefits from October 1997 through May 2005, and even advised VA in 1999 that she had not remarried since the death of the Veteran in 1963. It appears the appellant's benefits were terminated only after "someone" notified VA of her marriage to E.J. (according to the Court documents submitted by the appellant, it was E.J. who notified VA), and then it was not until February 2011 that the appellant reached out to VA about the reinstatement of her DIC benefits, after the criminal indictment against her was dismissed. Additionally, while the appellant has described the marriage to E.J. as being under false pretenses and deceptive circumstances, it appears that it was because E.J. did not disclose to the appellant that he had been married previously. Meanwhile, the record shows the appellant nonetheless entered into a marriage with E.J. in October 1997, believed she was married to E.J., and held herself out as being the spouse of E.J., but did not notify VA of that remarriage. Although it was later established that the appellant's attempted marriage to E.J. was not a legal marriage and was ultimately rendered void due to legal impediment, and it is also shown that the appellant entered into the marriage without knowledge of this legal impediment, the fact remains that the appellant did enter into what she thought was a valid marriage with E.J. and did not report this to VA. See 38 C.F.R. § 3.50(b). The Board acknowledges the appellant's contention that because her marriage to E.J. was void, pursuant to 38 C.F.R. § 3.55, rather than terminated, she should receive DIC benefits prior to February 9, 2011. 38 C.F.R. § 3.55(a)(i) provides that remarriage of a surviving spouse shall not bar the furnishing of benefits to such surviving spouse if the marriage was void. In that regard, the record shows VA has acknowledged that the appellant's marriage to E.J. was void and has not barred her from receiving DIC benefits. Moreover, she was able to keep, and did not have to pay back, the DIC benefits paid to her from October 1997 to March 2005, after a waiver of the overpayment of DIC benefits for that period was granted. Additionally, she has continued to receive DIC benefits since February 9, 2011. In light of the foregoing, the Board concludes that although her marriage to E.J. was void, entitlement to DIC benefits prior to February 9, 2011 is not warranted. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Casula 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.