Patricio v. Shulkin, Case Number 15-3924, decided August
31, 2017 examines a claim of DIC and whether a prior marriage had resulted in a
divorce. The interesting issue is that
the issue had been decided by the VA in 1986 and found against Patricio.
While the veteran was alive in 1986, a RO decision denied
certain benefits based on a determination that a marriage to Ms. Patricio was
not valid under the law of the Philippines.
After the veteran died, Patricio as well as a prior spouse both filed
for DIC. The VA denied DIC to Patricio
but granted as to the prior spouse.
The issue was the effectiveness of a divorce in California
from the prior spouse. The veteran and
prior spouse were married in the Philippines in 1968 and purportedly divorced
in California in 1973. In 1986, the VA
found that the divorce in California was not valid and so the second marriage
was not valid. The rationale in 1986 was
that while under California law the divorce was valid, the veteran’s domicile
during and following service remained the Philippines and the law of the Philippines
governed and the Philippines rejects foreign divorces of its citizens.
The rub was that there was evidence the veteran became a
citizen sometime before the California divorce.
First, the Secretary argued the Court lacked jurisdiction. The Secretary’s argument was that Patricio was
effectively making a CUE challenge to the 1986 decision and as she had not
actually filed a CUE claim and a CUE claim had not been ruled on, the Court
lacked jurisdiction. The Court rejected
this out of hand, noting the both alleged spouses filed for DIC and because
Patricio’s claim was denied. As to the
CUE argument, the Court noted she was not entitled to file a CUE motion as to
the 1986 decision because such motion could only be filed by the claimant—and the
claimant was the veteran, not her).
Next, the Court noted 38 CFR 20.1106 states except in
situations not relevant to this claim, “issues involved in a survivor’s claim
for death benefits will be decided without regard to any prior disposition of
those issues during the veteran’s lifetime.”
The Court found” “This means that for purposes of her pursuit of
survivor benefits, including surviving spouse status, the prior unfavorable October
1986 RO decision determine that the veteran’s 1980 marriage to Ms. Patricio
could not be legally recognized is of no moment.” Id. at *7.
Finally, the Court found the Board’s decision was undergirded
by the notion that the veteran’s divorce could not be valid because he was
still a citizen of the Philippines.
However, both parties agreed he Board failed to make a factual finding
as to citizenship at the time of the 1973 divorce. The Court refused to make a factual finding
as to citizenship and remanded the case to the Board for such initial determination. However, it pointed out that under the law of
the Philippines, when a foreign national married to a Philippine citizen
obtains a valid foreign divorce, the law of the Philippines recognizes such
divorce.
On remand, the Court also found that it was necessary for the
Board to notify the first spouse and current recipient of DIC of any future
hearing as she could possibly lose her benefit.
Decision by Judge Bartley, joined by Chief Judge Davis and Judge
Greenberg.
