Citation Nr: 21032000 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 10-00 074A DATE: May 25, 2021 ORDER Entitlement to recognition as the Veteran's surviving spouse for the purposes of Department of Veterans Affairs (VA) benefits is denied. FINDING OF FACT At the time of his death in March 1983, the Veteran was legally married to another womanM.P. At no point prior to his passing did the Veteran identify or refer to the Appellant as his spouse. CONCLUSION OF LAW The Appellant is not entitled to recognition as the Veteran's surviving spouse for the purposes VA benefits. 38 U.S.C. § 101, 103; 38 C.F.R. § 3.1(j), 3.50, 3.52, 3.53, 3.54, 3.102. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1917 to June 1920, June 1922 to June 1923, October 1923 to April 1927, and February 1945 to January 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 decision of a VA Regional Office (RO). Jurisdiction of the claims file currently resides with the Milwaukee, Wisconsin Pension Center. In April 2012, the Board found that new and material evidence had been received to reopen the previously denied issue of entitlement to recognition of the Appellant as the Veteran's surviving spouse for VA purposes. The Board then remanded the issue for its initial adjudication by the Agency of Original Jurisdiction (AOJ) on the merits. The case has now returned to the Board for appellate review. Recognition as the Veteran's Surviving Spouse As indicated above in the Conclusion of Law section, the Board finds that the Appellant may not be recognized as the Veteran's surviving spouse for VA purposes. Accordingly, the Board denies the Appellant's claim. In support of this determination, the Board notes that VA death benefits may be paid to a surviving spouse who was married to a veteran for: (1) one year or more prior to the veteran's death; or (2) for any period of time, if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C. §§ 1102, 1304, 1541; 38 C.F.R. § 3.54. 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. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The term "surviving spouse" is defined as a person who: (1) was the lawful spouse of a veteran at the time of the veteran's death; (2) lived with the veteran continuously from the date of marriage to the date of the veteran's death, except where there was a separation which was due to the misconduct of, or procured by, the veteran without fault of the spouse; and (3) has not remarried. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b)(1); see Gregory v. Brown, 5 Vet. App. 108 (1993); see also VA O.G.C. Prec. Op. No. 3-2014. Further, the surviving spouse must not have lived with another person and held him- or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50(b)(2). Status as a "surviving spouse" is a threshold question in VA death benefits cases. Turning to the evidence of record in the instant case, the Board first notes that the Veteran had an extensive and complicated marital history. Specifically, he was born in November 1900 and married his first spouse, R.D., in October 1925. The Veteran and RD remained married until December 1946 when R.D. died. See, e.g. October 1946 VA Marital Status Form; Republic of the Philippines Certificate of Death for R.D., received by VA in April 1983. About 4 years after R.D.'s deathin July 1950the Veteran purportedly married another woman, M.P. See Commonwealth of the Philippines Marriage Contract, received by VA in November 1960. However, the Veteran later petitioned a Philippine court for an order declaring his July 1950 marriage to M.P. to be null and void as, at the time of their marriage, he was not aware that M.P. was still married to another manidentified as E.L. or Q.L.and that E.L. was still alive. A marriage contract associated with the claims file in November 1960 indicates that M.P. married a man by the name of Q.L. in the Philippines in September 1940. In May 1953, a Court of First Instance in the Republic of the Philippines granted the Veteran's petition and issued a decision annulling the Veteran and M.P.'s July 1950 marriage. Upon the issuance of the May 1953 decision, the Veteran was once again considered unmarried for VA purposes. About 12 years later, in October 1965, the Veteran again married M.P. as evidenced by another marriage contract associated with the claims file that same month. In an affidavit submitted with a copy of the October 1965 marriage contract, M.P. stated that her first husband, E.L./Q.L., had been missing since December 1941 when his place of work was bombed by Japanese forces during World War II. In response to these submissions, VA issued an administrative decision in November 1970 declaring that E.L./Q.L. was presumed dead for the purposes of paying the Veteran additional compensation for a dependent spouse. Accordingly, pursuant to the November 1970 administrative decision, VA identified M.P. as the Veteran's spouse pursuant to a legal marriage performed in the Philippines. Subsequently, however, in November 1976, VA issued another administrative decision regarding the Veteran's marital status. Specifically, it reversed its November 1970 decision as additional evidence was discovered confirming that E.L./Q.L. was still alive, that M.P. was aware of his continued existence, and that there was no evidence that M.P.'s marriage to E.L./Q.L. had been dissolved or terminated at the time of her October 1965 marriage to the Veteran. As such, VA concluded that the Veteran was not entitled to additional compensation for a dependent spouse. Following this November 1976 administrative decision, the Veteran submitted another marriage contract to VA in May 1980. This marriage contract indicated that he and M.P. were married again in Metro Manila in May 1980. Simultaneous with his filing of a new marriage contract, the Veteran submitted a copy of an April 1980 order from the Court of First Instance of Bulacan, Republic of the Philippines. This April 1980 court order indicated that M.P.'s marriage to E.L./Q.L. was annulled. Thus, the Veteran and M.P. were purportedly single, unmarried individuals at the time of their May 1980 marriage. However, in September 1980, a VA District Counsel issued a legal opinion regarding the April 1980 court order granting M.P. an annulment of her marriage to E.L/Q.L. In the September 1980 opinion, the District Counsel found the April 1980 order to be of no effect as the District Counsel concluded that M.P. was not completely forthcoming with the Philippine court. Additionally, the District Counsel determined that the relief provided in the order was granted contrary to Philippine law. Accordingly, the District Counsel found that M.P. was still not the Veteran's legal spouse for VA purposes. Thereafter, both M.P. and the Veteran received notice that M.P.'s husband E.L./Q.L. had passed away. Specifically, in January 1981, the Veteran filed a copy of E.L./Q.L.'s certificate of death which indicated that he died in July 1980 in Iba, Zambales, the Republic of the Philippines. With E.L./Q.L.'s death, his September 1940 marriage to M.P. was terminated and she was now a single person free to legally marry again. With this development, M.P. and the Veteran were married once again in January 1981 in a religious ceremony in Manila. The Veteran submitted a copy of the marriage contract pertaining to this marital ceremony to VA later in January 1981. There is no evidence of record indicating that this January 1981 marriage between M.P. and the Veteran was invalid. Accordingly, beginning January 1981, M.P. was the Veteran's legal spouse for VA purposes. See 38 C.F.R. § 3.1(j). Following their January 1981 marriage, the evidence of record indicates that there was strife between M.P. and the Veteran. Specifically, at some point in 1982, he moved out of their marital home and began residing with F.V.G., a daughter from his marriage to R.D., and her husband at Clark Air Base. The Veteran then died in March 1983. In this case, the Appellant has contended that she and not M.P. was the Veteran's spouse at the time of his death in March 1983. As stated previously, for VA purposes "surviving spouse" status requires an individual to be the lawful spouse of the veteran at the time of the Veteran's death. See 38 C.F.R. § 3.50(b). Here, M.P. was the legal spouse of the Veteran at the time of his March 1983 death, courtesy of their January 1981 marriage. Although he may have disliked her and resided in a different home beginning in 1982, there is no indication that his January 1981 marriage to M.P. was terminated or dissolved prior to his March 1983 death. Accordingly, the Board may not conclude that the Appellant was the Veteran's legal spouse at the time of his death, and, at first blush, it appears that the Board must deny the Appellant's claim. Id. However, the Appellant has filed with VA a copy of a marriage contract indicating that she married the Veteran in September 1981. Additionally, she has indicated that she and the Veteran had a child together and that she was not aware of the Veteran's January 1981 marriage to M.P. prior to September 1981. Lastly, she has submitted statements from individuals who indicated that they attended the September 1981 marriage ceremony, and that they witnessed the Appellant and the Veteran reside together and act publicly as husband and wife. See, e.g., May 2020 Affidavits of C.C.F., R.M.P., A.G.F. Such evidence indicates that the exception to the valid marriage rule, provided by 38 C.F.R. § 3.52, may be for application in the instant case. Specifically, where an attempted marriage of a claimant to a veteran was invalid by reason of a legal impediment, VA will nevertheless deem the marriage valid if: (1) the marriage occurred one year or more before the veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage; (2) the claimant entered into the marriage without knowledge of the impediment; (3) the claimant cohabited with the veteran continuously from the date of marriage to the date of his or her death; and (4) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the veteran's death. 38 C.F.R. § 3.52. After reviewing the complete evidence of record, the Board finds that the marriage-deemed-valid exception is not applicable in the instant case such that the Appellant may not be recognized as the Veteran's surviving spouse. In support of this determination, the Board notes that a marriage requires the mutual agreement of two parties regarding their entrance into the marital relationship. See 38 C.F.R. § 3.1(j). Here, while the Appellant may currently believe that she was the Veteran's spouse prior to his March 1983 death, the Veteran himself never referred to the Appellant as his spouse during his lifetime. Specifically, in a March 1981 statement, the Veteran indicated that he, his spouse M.P., 5 of his children, and 5 of his grandchildren all resided in the same household. The Veteran did not mention the Appellant or her daughter A., who was born in January 1975 and whom the Veteran acknowledged was his daughter in January 1976. See A.'s Certificate of Live Birth, received in January 1976; January 1976 Correspondence. Consistent with his March 1981 statement, in June 1982, the Veteran filed a VA Form 21-686c, Declaration of Marital Status, wherein he indicated that he had been married a total of 2 times. He then stated that he was first married to R.D. from October 1925 to December 1946 and that this marriage ended due to R.D.'s death. The Veteran then stated that he married M.P. in January 1981 and that M.P. was still his spouse. The Veteran did not mention the Appellant in his marital history or as a current spouse. In June 1982, VA also received a completed VA Form 21-686c from the Appellant. On this form, the Appellant indicated her marital status as "never married" and listed no prior marriages in her marital history. The Appellant made these statements even though she supposedly married the Veteran in a formal ceremony a mere 9 months earlier. Thereafter, the Board notes that the Veteran continued to refer to M.P., and not the Appellant, as his spouse up until the time of his death. Specifically, as documented in a November 1982 VA Form 21-4138, even as he confirmed that he was living with his daughter at Clark Air Base and no longer living in his marital home, the Veteran still referred to M.P. as his spouse. Despite his apparent negative relationship with M.P. prior to his death only 4 months later, the Veteran did not mention any relationship with the Appellant or refer to her as his spouse. Lastly, the Board notes that the first time the Appellant identified herself to VA as the Veteran's spouse was in January 1994, approximately 11 years after the Veteran's death, when she filed an application for dependency and indemnity compensation (DIC), death pension, and accrued benefits. While the Appellant did submit a copy of the September 1981 marriage contract between herself and the Veteran, VA investigated the validity of the document in December 1995 with the Local Civil Registrar's Office of Las Pinas, Metro Manila. This investigation revealed that the marriage registration and marriage license numbers listed on the September 1981 contract were not actually issued for the year 1981. Additionally, the contract was not submitted for registration with the Local Registrar's Office until December 1993more than 10 years after the Veteran's death. Accordingly, the investigation determined that the September 1981 marriage contract was not an authentic document. Thus, the Board concludes that this marriage certificate is of little probative value. From the totality of the evidence of record, the Board concludes that both the Veteran and the Appellant never referred to each other as spouses during the Veteran's lifetime. As both parties did not indicate that they entered any type of marital relationship prior to the Veteran's March 1983 death, the Board concludes that the marriage-deemed-valid exception provided by 38 C.F.R. § 3.52 is not for application in the instant case. See also 38 C.F.R. § 3.1(j). Thus, as the Appellant was neither (1) the Veteran's legal spouse nor (2) his spouse in an attempted marriage prior to his death, the Board finds that the Appellant may not be recognized as the Veteran's surviving spouse for VA purposes. The Appellant's claim is denied. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.