Citation Nr: 1753370 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 14-20 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to additional compensation at an increased rate for a dependent spouse. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and the Veteran's daughter ATTORNEY FOR THE BOARD D. Ware, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from January 1951 to September 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In May 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the record. A motion to advance this appeal on the Board's docket has been raised by the Board's Acting Vice Chairman. The undersigned is granting the motion and advancing the appeal on the docket based upon advanced age. 38 C.F.R. § 20.900(c)("advanced age" is defined as 75 or more years of age). FINDINGS OF FACT 1. The Veteran and S.C. were married in Sidney, Montana in March 1959. 2. The Veteran and A.C. were married in Williston, North Dakota in June 1985. 3. The Veteran's statements concerning his divorce from S.C. conflicted with evidence of record. 4. Corroborating evidence was not provided to establish that the Veteran's first marriage to S.C. was legally terminated by divorce prior to June 1985. CONCLUSION OF LAW The criteria for additional compensation for a dependent spouse have not been met. 38 U.S.C.A. §§ 103(c), 1115, 5124 (West 2014); 38 C.F.R. §§ 3.1(j), 3.204(a), 3.205(b), 3.206(b) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks to establish an award of additional compensation benefits for A.C. as his dependent spouse. Although there is insufficient evidence that the Veteran legally terminated his first marriage to S.C. by divorce, the Veteran contends that because of S.C.'s death after his marriage to A.C., his marriage to A.C. is valid. The law provides that a Veteran who is entitled to compensation, and whose disability is rated not less than 30 percent, shall be entitled to additional compensation for dependents. 38 U.S.C.A. § 1115. For purposes of VA benefits, a marriage means a marriage valid under 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). In the absence of conflicting information, a valid marriage may be established by various types of documentary evidence together with the claimant's certified statement concerning the date, place and circumstances of dissolution of any prior marriage, provided that such facts, if they were to be corroborated by the evidence, would warrant acceptance of the marriage as valid. Where it is necessary to determine if a prior marriage was dissolved due to conflicting evidence in the record, proof of termination of a prior marriage can be shown by proof of death or a certified copy or certified abstract of a final decree of divorce or annulment specifically reciting the effects of the decree. See 38 C.F.R. § 3.205(b). See also 38 U.S.C.A. § 5124; 38 C.F.R. § 3.204(a)(VA shall require corroborating evidence to verify the dissolution of marriage where the claimant's statement conflicts with other evidence of record). The validity of a divorce decree regular on its face will be questioned by VA only when such validity is put in issue by a party thereto or a person whose interest in a claim for VA benefits would be affected thereby. In cases where recognition of the decree is thus brought into question, where the issue is the validity of marriage to a veteran following a divorce, the matter of recognition of the divorce by VA (including any question of bona fide domicile) will be determined according to the laws of the jurisdictions specified in § 3.1(j). See 38 C.F.R. § 3.206(b). As an initial matter, the Veteran's claim was previously denied by the RO because the Veteran did not submit an actual divorce decree to resolve the inconsistencies in the place and date of his divorce from his first spouse, S.C. See December 2013 Notification Letter. In written statements and testimony before the Board, the Veteran indicated that approximately three years after he married his first spouse, S.C., she told him that she was getting a divorce and left. According to the marriage certificate, the Veteran married S.C. in March 1959. The Veteran testified that after not hearing from S.C. for several years, he thought she had obtained the divorce. He subsequently married A.C. in June 1985. Moreover, the Veteran's representative concluded that S.C. must have thought that she was divorced because she later married D.C., as documented on S.C.'s death certificate. The Board finds that, in light of the Veteran's explanation of the circumstances surrounding his divorce from his first wife, S.C., the Veteran has not provided corroborating evidence of termination of his first marriage prior to his second marriage to A.C. in June 1985. See 38 C.F.R. § 3.205(b). Moreover, there is insufficient indication in the evidence of record that the Veteran considered his first wife, S.C., to be dead, either through actual evidence of death, or through the 7-year continued or unexplained absence presumption afforded by application of 38 C.F.R. § 3.212 (2016), prior to his second marriage to A.C. in June 1985. Accordingly, there is insufficient evidence that in June 1985, the Veteran's marriage to S.C. was legally dissolved, through either divorce or death, as to permit him to enter into another recognized marital relationship. Therefore, A.C. cannot be considered a dependent spouse under the relevant provisions noted above. Where, as here, the law and not the evidence is dispositive, the claim is denied because of the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to additional compensation at an increased rate for a dependent spouse is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs