Cacatian v. West

12 Vet. App. 373, 1999 U.S. Vet. App. LEXIS 306, 1999 WL 292652
CourtUnited States Court of Appeals for Veterans Claims
DecidedMay 11, 1999
DocketNo. 97-1730
StatusPublished
Cited by20 cases

This text of 12 Vet. App. 373 (Cacatian v. West) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cacatian v. West, 12 Vet. App. 373, 1999 U.S. Vet. App. LEXIS 306, 1999 WL 292652 (Cal. 1999).

Opinion

HOLDAWAY, Judge:

The appellant, Marcelina S. Caeatian, the widow of veteran Angel C. Caeatian, appeals the June 1997 decision of the Board of Veterans’ Appeals (Board or BVA) which determined that she was not entitled to recognition as the veteran’s surviving spouse for VA benefits purposes. The appellant has filed an informal brief, and the Secretary has filed a motion for summary affirmance. The Court has jurisdiction of this matter under 38 U.S.C. § 7252(a). Because this appeal involves a matter of statutory interpretation that is an issue of first impression, summary affirmance is not appropriate. See Frankel v. Derwinski, 1 Vet.App. 23 (1990). For the following reasons, the Court will affirm the decision of the Board.

I. FACTS

The veteran served on active duty in the U.S. Army from May 1942 to May 1950. R. at 94. The veteran’s service records list the appellant as his wife. R. at 44-46. In April 1989, the veteran died of a myocardial infarction. R. at 141.

In June 1989, the appellant filed an application for dependency and indemnity compensation. R. at 132-35. A notarized certificate from the civil register of the Municipality of Fabian Pangasinan states that the veteran and the appellant were married in May 1945. R. at 187. In March and April 1991, the VA regional office conducted field examinations, including depositions of the appellant and the veteran’s brother. R. at 264-79. The field examiners found that the appellant had been living in a common law relationship with Pablo G. Mabu-tas since May 1955. The appellant and Mr. Mabutas had never been married because she was still legally married and, therefore, they were not free to enter into a marriage contract.

According to the appellant’s March 1991 deposition, she married the veteran in May 1945, and they had lived together as husband and wife until he was reassigned in 1947. R. at 267-68. At that time she went to live with his parents. Id. She stated that she received continual monthly support from the veteran until he was discharged in May 1950. Id. She testified that she was visited by the veteran’s sisters sometime in 1950 and that they informed her that the veteran was living in a marital relationship in Manila. R. at 269. The appellant indicated that she was hurt by his actions and did not attempt to contact him. Id. She also indicated that the veteran had never tried to reconcile with her.

In June 1992, Mr. Mabutas died. In February 1993, the appellant submitted a joint affidavit from Andres and Gregoria Caeatian, the veteran’s brother and sister. R. at 387. They attested to the fact that the appellant and the veteran were married in May 1945 and had lived together from 1945 to 1947. They also stated that the veteran had left the appellant for unknown reasons and that the appellant had no fault in the separation. Id. A field examination in June 1996 verified the above history. R. at 539^14.

The Board found that the veteran and the appellant were married in May 1945, had lived together until 1947, and then were permanently separated. The Board found that she was not eligible for dependency and indemnity compensation because she had lived [375]*375with and held herself out as the wife of Mr. Mabutas. The Board also found that 38 C.F.R. § 3.55 (1998) did not apply because her relationship with Mr. Mabutas had not terminated prior to November 1,1991.

II. ANALYSIS

Section 101(3) of title 38, U.S.Code, states:

The term “surviving spouse” means ... a person of the opposite sex who was the spouse of a veteran at the time of the veteran’s death, and who 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 the fault of the spouse) and who has not remarried or (in the case not involving marriage) has not since the death of the veteran ... lived with another person and held himself or herself out openly to the public to be the spouse of such other person.

Section 3.50 of title 38, Code of Federal Regulations, the implementing regulation, states:

(b) Surviving spouse. ... “[S]urviving spouse” means a person of the opposite sex whose marriage to the veteran meets the requirements of § 3.1® and who was the spouse of the veteran at the time of the veteran’s death and:
(1) Who 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 the fault of the spouse; and
(2) Except as provided in § 3.55, has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person.

“Marriage means a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued.” 38 C.F.R. § 3.1© (1998). At the time of the Board’s decision, pursuant to 38 C.F.R. § 3.55(a)(3), “the fact that a surviving spouse has lived with another and has held himself or herself out openly to the public as the spouse of such other person shall not bar the furnishing of benefits to him or her after he or she terminates the relationship, if the relationship terminated prior to November 1, 1990.” See also Owings v. Brown, 8 Vet.App. 17, 19-20 (1995) (explaining the legislative enactments underlying the November 1, 1990, limitation in section 3.55).

In order to understand the relevance of the November 1, 1990, date limitation in section 3.55(a)(3), a brief synopsis of the Congressional enactments affecting surviving-spouse eligibility is necessary. Prior to November 1, 1990, 38 U.S.C. § 103(d)(3) (1989) stated “If a surviving spouse ceases living with another person and holding himself or herself out openly to the public as that person’s spouse, the bar to granting that person benefits as the surviving spouse of the veteran shall not apply.” However, Congress struck out subsection (d)(3) effective October 31, 1990, thereby prohibiting the reinstatement of eligibility for dependency and indemnity compensation upon the termination of a marital-type relationship. See Omnibus Budget Reconciliation Act of 1990 (OBRA), Pub.L. No. 101-508, § 8004, 104 Stat. 1388 (1990) (found at 38 U.S.C. § 103 note). In August 1992, Congress enacted an exception to the above amendment in OBRA:

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Bluebook (online)
12 Vet. App. 373, 1999 U.S. Vet. App. LEXIS 306, 1999 WL 292652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cacatian-v-west-cavc-1999.