Citation Nr: 1753693 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 07-32 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an effective date prior to July 1, 2004 for the addition of D.A. as a dependent spouse for VA compensation purposes. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran and D.A. ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from March 1976 to July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2012, the Board remanded the issue on appeal in order for the Veteran to be scheduled for a Board hearing. In April 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. During the hearing the Veteran submitted additional evidence with a waiver of initial RO review. A Report of General Information on November 8, 2017 shows that the Veteran called to report his divorce from D.A. on November 3, 2017. It was requested that she be removed from the Veteran's award as soon as possible. Thus the Board refers this matter to the RO for appropriate action. However, as the Veteran and D.A. were married during the appeal period the issue of entitlement to an effective date prior to July 1, 2004 for the addition of D.A. as a dependent spouse for VA compensation purposes remains in appellate status. FINDINGS OF FACT 1. In July 1976 the Veteran married E.A. and they divorced in September 1985. 2. In February 1992 the Veteran married A.A. and their divorce was finalized on May 27, 2004. 3. The Veteran's marriage certificate to D.A. shows that they were married on June 20, 2003. 4. On October 8, 2004 the Veteran submitted a claim for VA compensation benefits, VA Form 21-526, stating that D.A. was his spouse. 5. On June 16, 2005, the Veteran's Declaration of Status of Dependents was received listing D.A. as his spouse. 6. The RO awarded dependent spouse benefits for D.A., effective from July1, 2004, the first day of the month following 30 days after the Veteran's divorce from A.A. became final on May 27, 2004. CONCLUSION OF LAW The criteria for an effective date earlier than July 1, 2004, for the award of dependency benefits for D.A. as the Veteran's spouse have not been met. 38 U.S.C.A. §§ 1115, 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.4(b)(2), 3.31, 3.401 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has statutory and regulatory notice and duty to assist provisions under the Veterans Claims Assistance Act (VCAA). However, these provisions are not applicable in cases such as this where resolution of the claim is as a matter of law. See Manning v. Principi, 16 Vet. App. 534, 542 (2002) (holding that the VCAA has no effect on appeal limited to matter of law); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). No amount of additional evidentiary development would change the result of this case. Accordingly, VA's duties to notify and assist are not applicable and need not be addressed. Analysis Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a). The statute and regulations specifically provide that an award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the purpose shall be payable from the effective date of such rating; but only if proof of dependents is received within one year from the date of notification of such rating action. 38 U.S.C.A. § 5110(f); 38 C.F.R. § 3.401(b)(3). The statute and regulation further provides that the effective date of the award of any benefit or any increase therein by reason of marriage shall be the date of such event, if proof of such event is received by the Secretary within one year from the date of marriage. 38 U.S.C.A. § 5110(n); 38 C.F.R. § 3.401(b)(1)(i). Regarding an award of additional compensation for dependents based on the establishment of a rating in the percentage specified by law for that purpose, the effective date will be the latest of the following dates: (1) date of claim; (2) date the dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within a year of notification of such rating action; or (4) date of commencement of the service member's award. 38 C.F.R. § 3.401(b). The "date of claim" for additional compensation for dependents is the date of the Veteran's marriage or birth/adoption of a child, if evidence of the event is received within a year of the event; otherwise, it is the date notice is received of the dependent's existence, if evidence is received within a year of notification of such rating action. 38 U.S.C.A. § 5110(f),(n); 38 C.F.R. § 3.401(b)(1). The earliest date that an additional award of compensation for a dependent spouse can occur is the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31. An additional amount of compensation may be payable for a spouse when a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling. 38 U.S.C.A. § 1115(1)(A); 38 C.F.R. § 3.4(b)(2). As an initial matter, the Veteran has met the criteria for entitlement to additional compensation for a spouse based on disability evaluated as 30 percent or more disabling since December 1980. The Veteran submitted a claim for VA compensation benefits, VA Form 21-526, on October 8, 2004 and indicated that D.A. was his spouse. The Veteran's Declaration of Status of Dependents was received on June 16, 2005, where D.A. is listed as his spouse. The Veteran married E.A. in July 1976 and they divorced in September 1985. In February 1992 the Veteran married A.A. in the state of Texas The Veteran also has a marriage certificate dated on June 20, 2003 that shows he married D.A. in the state of Nevada The threshold matter in this case is a twofold question, the date of the final decree of divorce between A.A. and the Veteran and the date his marriage to D.A. became valid. During this period the evidence shows that the parties resided in Texas. See May 2004 Final Decree of Divorce and June 2005 supporting statement regarding marriage from D.A. asserting that she and the Veteran have lived in Texas from September 2002 to the present. The Veteran contends that he was formally divorced from A.A. in September 2002 but because he wanted to contest his alimony payments he later reopened his case. See, e.g., December 2006 DRO hearing transcript and April 2017 Board hearing transcript. He claims that his marriage to D.A. should be recognized as a common law marriage effective October 25, 2002, which is thirty days after the date of his first final divorce decree. See August 2006 notice of disagreement. Alternatively, the Veteran contends that D.A. was his dependent spouse effective June 20, 2003, the date of their marriage certificate. See April 2017 Board hearing transcript. He stated that he was divorced from A.A. when he married D.A. and his May 2004 document was just an amendment to his divorce from A.A. Id. The evidence reflects that in October 2002 the Veteran filed a Motion for New Trial with the 198th Judicial District Court in Kerr County, Texas stating that on September 25, 2002 a judgement was signed by the Court and he had not received notice of the hearing as his former counsel forwarded all notices to an incorrect address. It was stated that the Veteran "prays that the Court set aside the judgment signed on September 25, 2002 and grant a new trial." The Veteran's motion was granted and a hearing was set on November 15, 2002. On November 15, 2002, a Final Decree of Divorce was issued noting that the Veteran, although served with Notice did not appear, and wholly defaulted. In part, the Court ordered the Veteran to pay as maintenance the sum of $500.00 per month to A.A. In March 2004, the Veteran filed a Motion for Reopening and Moving Divorce in the District Court of the 198th Judicial District in Kerr County Texas. The Veteran filed the motion so that his divorce could be moved to Harris County, which was then his county of residence. He stated that he was not allowed his right to be present at his previous hearing due to his incarceration and asserted that he had enough evidence to prove that he did not owe A.A. $500.00 monthly. On May 27, 2004 the "Final Decree of Divorce" was issued in the matter of the marriage between the Veteran and A.A. in the District Court 198th Judicial District Court in Kerr County, Texas. The decree began with the following statement "(o)n November 30, 2003, came on to be heard a Motion For New Trial and the Court granted the Motion For New Trial." It was ordered that A.A, the Respondent, is granted a divorce from the Veteran, the Petitioner, and the marriage between them is dissolved on the ground of insupportability. The Court addressed the division of the marital estate awarding the Veteran and A.A. various household items, personal items, cash, retirement plans and investments plans, which they each had in their possession or were subject to their individual control. The judgment was signed on May 27, 2004 by the presiding Judge and was approved as to form and content by A.A. In an administrative decision in December 2005 the RO decided that the Veteran and D.A. have a common law marriage effective May 28, 2004. His initial divorce to A.A. was acknowledged as occurring in September 2002 as was his marriage certificate to D.A. dated in June 2003. However, as the Veteran's Final Decree of Divorce to A.A. was dated on May 27, 2004 his marriage in June 2003 to D.A. was deemed not to be a valid marriage due to the legal impediment of him still being married to A.A.. As the evidence shows that the Veteran and D.A. held themselves out to be a married couple since March 2002 the RO determined that their common law marriage can be established the day following the Veteran's final divorce decree, which is May 28, 2004. In December 2005 the RO notified the Veteran that A.A. was removed from his award effective June 1, 2004. In a February 2006 administrative decision it was determined that a clear and unmistakable error was made in the effective date of establishment of the common law marriage between the Veteran and A.A. on the prior administrative decision dated December 8, 2005. It was determined that the date their common law marriage can be established is June 27, 2004. The RO explained that the State of Texas Family Code 6.801 states neither party to a divorce may marry a third party before the 3lst day after the date the divorce is decreed. Therefore, the RO found the date that the common law marriage between the Veteran and D.A. can be established is June 27, 2004. A Regional Counsel opinion was obtained in July 2006. In essence, it determined that the date of divorce between A.A. and the Veteran is May 27, 2004. The Office of Regional Counsel explained that in Deen v. Kirk, 508 S.W.2d 70 (1974) it was held that "(j)udgments shall become final after the expiration of thirty (30) days after the date of rendition of judgment or order overruling an original or amended motion for new trial." Thus it was concluded that the original divorce decree was not final until the Veteran filed a Motion for New Trial as under the Texas Rules of Civil Procedure "(n)ew trials may be granted and judgment set aside for good cause, on motion or on the court's own motion on such terms as the court shall direct." See Tex R. Civ. P. 320. Further, case law in Texas provides that "(t)he filing of a motion for new trial prevents a judgment from becoming final until such motion is overruled, either by the court or by operation of law." See Ex parte Oliver, 713 S.W.2d 435 (1986). Thus the Office of Regional Counsel explained that when the Veteran's Motion for New Trial was granted, the prior judgement was invalidated and the parties were then allowed to proceed without prejudice. See Markowitz v. Markowitz, 118 S.W.3d 82 (2003). "Granting a new trial has the legal effect of vacating the original judgment and returning the case to the trial docket as though there had been no previous trial or hearing." Id. Therefore a wholly new trial was conducted on the merits that resulted in the Final Decree of Divorce on May 27, 2004, which is the day the Veteran and A.A were finally legally divorced. The Office of Regional Counsel further determined that the Veteran was not free to marry D.A. on June 23, 2003 as his divorce from A.A. was not legal until May 27, 2004 as according to Texas statutory law "(a) marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse." See Tex. Fam. Code § 6.202(a). Furthermore, according to Texas law "(t)he later marriage that is void under this section becomes valid when the prior marriage is dissolved if, after the date of the dissolution, the parties have lived together as husband and wife and represented themselves to others as being married. See Tex. Fam. Code § 6.801. Thus it was concluded that D.A. may be added to the Veteran's award as of July 1, 2004 as their marriage became valid 30 days after his divorce was final in May 2004. Based on a careful review of the record, the Board finds that the Veteran's divorce from A.A. was not finalized until May 27, 2004 as his prior divorce decree under Texas law was vacated when his motion for a new trial was granted on November 30, 2003. See Tex R. Civ. P. 320. The Board recognizes that the Veteran and D.A. lived together from September 2002 and have a marriage certificate dated in June 2003, however their marriage could not be valid until 30 days after his divorce to A.A. was finalized on May, 27, 2004. See Tex. Fam. Code § 6.80; Deen v. Kirk, 508 S.W.2d 70 (1974). The validity of a marriage is determined based upon the law of the jurisdiction where the parties resided at the time of marriage or when the rights to benefits accrued. 38 C.F.R. § 3.1(j). After considering the facts of this case, the Board finds that there is no legal basis to assign an effective date prior to July 1, 2004 for the award of spousal dependency benefits for D.A. Thirty days from the day the Veteran's divorce from A.A. became final is June 27, 2004 and the first day of the calendar month following the month in which the divorce became effective is July 1, 2004. See 38 C.F.R. § 3.31. The Board is bound by the laws and regulations that apply to veterans' claims. 38 U.S.C.A. § 7104 (c); 38 C.F.R. §§ 19.5, 20.101(a). The claim for an effective date earlier than July 1, 2004 for the award of spousal dependency benefits for D.A. must therefore be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to an effective date prior to July 1, 2004 to add D.A. as a dependent spouse is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs