Citation Nr: 1323551 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 11-02 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the Veteran's current spouse, L.M., may be recognized as a dependent spouse for VA monetary benefits. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from July 1977 to June 1978. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDING OF FACT The Veteran's current marriage to L.M. is presumed valid. CONCLUSION OF LAW The Veteran's current spouse, L.M., may be recognized as a dependent spouse for VA monetary benefits. 38 U.S.C.A. §§ 103(c), 5103, 5103A, 5124 (West 2002); 38 C.F.R. §§ 3.1(j), 3.204, 3.205 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Whether the Veteran's Current Spouse, L.M., May be Recognized as a Dependent Spouse for VA Monetary Benefits The Veteran seeks to add his current wife, L.M., as a dependent spouse. An additional amount of compensation may be payable for a spouse and/or 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). The Board notes that the Veteran is currently rated as totally disabled due to service-connected disabilities, and therefore is entitled to an additional amount of compensation if he has a dependent spouse or child. 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). 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). The evidence reflects that the Veteran has submitted conflicting evidence regarding his dates of marriages, divorces and claimed annulment. The Veteran contends that his previous marriage to his first wife, J.L., was annulled, and that based on his current marriage to L.M., she is entitled to VA benefits as a dependent spouse. Initially, the Board notes that the Veteran and his current spouse have multiple previous marriages. The Veteran has submitted an August 2010 marriage license for his marriage to his current spouse, L.M. With respect to the Veteran's current marriage, as discussed below, the law places the burden of rebutting the presumption of validity of a marriage upon the person attacking the presumption; however, no previous spouses appear to have taken any action to rebut the presumption of the validity of the Veteran's current marriage. Importantly, the RO found in its November 2010 decision and December 2010 Statement of the Case that the Veteran provided conflicting information as to his marriages, and particularly information regarding his annulment from his first wife, J.L., essentially questioning the validity of the Veteran's current marriage to L.M. The Board emphasizes that when there is an issue as to the validity of a marriage, the matter of recognition of the marriage by VA will be determined according to the laws of the jurisdiction(s) specified in 38 C.F.R. § 3.1(j), which the Board has determined to be the State of Oklahoma. 38 C.F.R. § 3.206(b). Case law in Oklahoma has created a presumption of validity of marriages. Oklahoma law presumes the validity of the latest in a series of marriages, such that earlier marriages are presumed to have ended in divorce absent evidence to the contrary. See Norton v. Coffield, 357 P.2d 434, 437 (Okla. 1960). In this case, the Veteran's marriage to J.L is asserted to have been annulled. The Veteran submitted evidence of multiple marriages and divorces, in the states of Oklahoma and Arizona, which occurred subsequent to his first marriage. The Board notes that although the Veteran has been unable to offer evidence of his annulment that occurred in 1978 to his first wife, he has submitted additional evidence of the validity of his subsequent marriages, including Decrees of Divorce from his second wife, C.M., in September 1985, and his third wife, V.M., in February 1996. Each of the Divorce Decrees indicated that the marriages at the time of the decrees had not been dissolved. As such, it is presumed that each marriage subsequent to the Veteran's first marriage to J.L. were valid prior to the issuance of a Divorce Decree. The Veteran has also submitted a death certificate for his fourth wife, S.M., in May 2010. There has been no evidence to suggest the Veteran is purposely providing fraudulent information; the Veteran has asserted that he has difficulty remembering dates and information due to his service-connected anxiety disorder and posttraumatic stress disorder. Records indicate the Veteran is receiving a total disability rating. In fact, records indicate that the VA granted spousal benefits to the Veteran's fourth wife, S.M., before her death. See November 2009 letter ("We are paying you as a Veteran with one dependent. Your payment includes an additional amount for your spouse."). Furthermore, the record contains a copy of a marriage application dated August 2010. Both the Veteran and L.M. are listed in the application along with their addresses (both were residents of Oklahoma at the time). It is signed by both the Court Clerk and Deputy. The license was granted, and the evidence reflects that the parties were married in a church the following day in Oklahoma and the Pastor completed the certificate. The marriage certificate was registered on August 2010 and signed again by the Court Clerk and Deputy. There is no evidence presented that rebuts the presumption of validity of the Veteran's August 2010 marriage. Thus, the 2010 marriage of the Veteran and L.M. is properly established. 38 C.F.R. § 3.205(a). The photocopies of the documents relating to the marriage and prior divorces are acceptable as evidence as they appear genuine and free from alteration. See 38 C.F.R. § 3.204(c) (2012). L.M., therefore, is the Veteran's spouse for VA purposes. 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). ORDER The Veteran's current spouse, L.M., may be recognized as a dependent spouse for VA monetary benefits. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs