Patricio: DIC and Proving a Marriage

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.