Citation Nr: 1125069 Decision Date: 07/01/11 Archive Date: 07/14/11 DOCKET NO. 09-18 680 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to additional VA monetary benefits for RSH as a dependent spouse. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to November 1968. This matter comes to the Board of Veterans' Appeals (Board) from a May 2008 decision by the RO denying the claim for additional compensation for RSW as a spouse. FINDINGS OF FACT 1. A marriage certificate shows that the Veteran married RSH in January 1964, and official documentation reveals that the marriage terminated in February 1968. 2. A marriage certificate indicates that the Veteran married LRW in March 1968, and appropriate documentation reveals that the marriage terminated in November 1973. 3. A marriage certificate reflects that the Veteran married DCL in December 1973, and a divorce decree shows that the marriage ended in May 1985. 4. A marriage certificate shows that the Veteran married HS in December 1979; there is no record of divorce. 5. A marriage certificate shows that the Veteran remarried RSH in April 1990. CONCLUSION OF LAW The criteria for entitlement to additional VA monetary benefits for RSH as a dependent spouse are met. 38 U.S.C.A. §§ 103(c), 5103, 5103A, 5124 (West 2002); 38 C.F.R. §§ 3.1(j), 3.204, 3.205 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). In this case, the Board is granting in full the benefit sought on appeal. Accordingly any error was committed with respect to either the duty to notify or the duty to assist is harmless and will not be further discussed. Law and Regulations An additional amount of compensation may be payable for a spouse and child where a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling. 38 U.S.C.A. § 1115; 38 C.F.R. § 3.4(b)(2). A spouse of a veteran is a person whose marriage to the veteran is valid according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued. 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). VA will accept the written statement of a claimant as proof of marriage or birth of a child for purposes of determining entitlement to benefits as long as the statement contains the month, year, and place of the event, the full name and relationship of the other person to the claimant, and the dependent's social security number. 38 U.S.C.A. § 5124; 38 C.F.R. § 3.204(a)(1). Other evidence is required under certain circumstances, such as where the claimant's statement on its face raises a question of its validity or the claimant's statement conflicts with other evidence of record. See 38 C.F.R. § 3.204(a)(2). Marriage is established by one of the following types of evidence: 1) Copy or abstract of the public record of marriage, or a copy of the church record of marriage, containing sufficient data to identify the parties, the date and place of marriage, and the number of prior marriages if shown on the official record; 2) Official report from service department as to marriage which occurred while the Veteran was in service; 3) The affidavit of the clergyman or magistrate who officiated; 4) The original certificate of marriage, if VA is satisfied that it is genuine and free from alteration; 5) The affidavits or certified statements of two or more eyewitnesses to the ceremony; 6) In jurisdictions where marriages other than by ceremony are recognized the affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parties held themselves out as married, and whether they were generally accepted as such in the communities in which they lived; or, 7) Any other secondary evidence which reasonably supports a belief by the adjudicating activity that a valid marriage actually occurred. 38 C.F.R. § 3.205(a). In the absence of conflicting information, proof of marriage which meets the requirements of 38 C.F.R. § 3.205(a) together with the claimant's certified statement concerning the date, place and circumstances of dissolution of any prior marriage may be accepted as establishing a valid marriage, provided that such facts, if they were to be corroborated by record evidence, would warrant acceptance of the marriage as valid. Where necessary to a determination because of conflicting information or protest by a party having an interest therein, proof of termination of a prior marriage will be shown by proof of death, or a certified copy or a certified abstract of final decree of divorce or annulment specifically reciting the effects of the decree. 38 C.F.R. § 3.205(b). Indiana law provides that a marriage is void if either party to the marriage had a wife or husband who was living when the marriage was solemnized. Ind. Code Ann. § 31-11-8-2 (West 2011). Such a marriage is void without any legal proceedings. Ind. Code Ann. § 31-11-8-1 (West 2011). Discussion Credibility The Veteran's credibility is suspect. Over the years he has provided inconsistent information regarding his numerous marriages, former wives, and offspring. Indeed, in December 1992, while seeking VA treatment, he indicated that he had no children. In March 1993, he told a private psychologist that he had fathered seven children. In April 1993, he told a private physician that he had five biological children. A review of the evidence indicates that the Veteran had children with each of his wives and that he produced at least eight children. The Veteran provided conflicting details as to his convoluted marital history. Whether valid or not, the Veteran married four women and then remarried his first spouse for a total of five marriages. There were times that he indicated that he had had only one marriage, namely the fifth. At other times he submitted incomplete lists of former wives. For instance, in October 1993, in a VA Form 21-686c, Declaration of Status of Dependents, the Veteran neglected to mention his third wife, a Canadian. The record contains records from the Ontario court system reflecting a marriage to and divorce from DCL. During an April 1995 VA psychiatric examination, the Veteran indicated that he got divorced in 1973 and went to Canada for two years. In October 2001, he told an RO official that he had not married while in Canada. A few days later, the RO was advised that there was a marriage in Canada. The Board's duty is to assess the credibility and weight of the evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the Board has a duty to assess). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Unarguably, a person who is incapable of providing consistent information on the most elementary details of his life, to include marriages and children, is not one who would likely present accurate information regarding any other aspect of his existence. As such, the Board has concluded that the Veteran lacks all credibility. Id. The Board emphasizes that VA decision makers have discretion to accept or reject pieces of evidence provided that sufficient reasons and bases are set forth explaining such actions. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993), citing Wood, 1 Vet. App. at 192-93. Factual Background Because the Board has found that the Veteran lacks credibility, it will rely upon the documentary evidence of record. See 38 C.F.R. § 3.204(a)(2). The evidence reflects that the Veteran married RSH in 1964 in Indiana and that they were divorced in February 1968. In March 1968, the Veteran married LRW in Indiana; they divorced in November 1973. In December 1973, he married DCL in Ontario. Records from the Ontario court system reveal that a divorce decree was entered in May 1985. In December 1979, in Indiana, the Veteran married HS. Despite the Veteran's insistence that there was a divorce in 1984, a thorough inquiry by the RO with several counties in Indiana failed to turn up any corroborative documentation. In late April 1990, only days after her third divorce, the Veteran remarried RSH. The Veteran has argued that he had never actually divorced RSH in the first place and that all of his subsequent marriages were therefore void. According to him, his signature on the divorce paperwork was forged and that the divorce was orchestrated by his mother in law. Due to the lack of any official evidence corroborating the foregoing, the Board rejects the Veteran's contentions, for as explained in great detail above, he is not credible. Analysis The Veteran's marriage to HS was void ab initio and without a need for legal proceedings according to Indiana law because he was still married to DCL, who was apparently alive and well in December 1979 (indeed she was active in seeking a divorce from the Veteran many years later) when the attempted marriage to HS took place. Ind. Code Ann. § 31-11-8-1 (West 2011); Ind. Code Ann. § 31-11-8-2 (West 2011). It follows that after the marriage to DCL terminated in May 1985, the Veteran was free to marry. The record contains a copy of an Application for Marriage License completed on April [redacted], 1990 in Bartholomew County, Indiana. Both the Veteran and RSH are listed in the application along with their addresses (RSH was a Bartholomew County resident at the time). The application contains information as to dependent children and number of previous marriages. It is signed by both the Veteran and RSH. The license was granted, and the evidence reflects that the parties were married in Bartholomew County that day. The marriage certificate was registered on May [redacted], 1990 and signed by the Clerk of the Bartholomew County Circuit Court. The document contains an official stamp attesting to its validity. Thus, the 1990 marriage of the Veteran and RSH is properly established. 38 C.F.R. § 3.205(a). RSH, therefore, is the Veteran's spouse for VA purposes. 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). The photocopies of the documents are relating to the marriages and divorces are acceptable as evidence as they appear genuine and free from alteration. See 38 C.F.R. § 3.204 (c)(2010). Because RSH is the Veteran's spouse for VA purposes and because he is rated more than 30 percent disabled, entitlement to additional compensation for RSH is established. See 38 U.S.C.A. § 1115; 38 C.F.R. § 3.4(b)(2). ORDER Entitlement to additional benefits for RSH as a dependent spouse is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs