Citation Nr: 18153601 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 15-32 659 DATE: November 29, 2018 ORDER For the period from July 2010 to October 2011, an increased rating of compensation based on additional dependency allowance for the Veteran’s former spouse, C., is denied. FINDINGS OF FACT 1. The Veteran did not submit evidence of C.’s social security number to VA within one year of the October 2011 letter notifying him that such information must be received by VA for an award of benefits based on C. as his dependent. 2. The Veteran and C. divorced in October 2011. CONCLUSION OF LAW From July 2010 to October 2011, the criteria for an additional award of compensation for the Veteran’s former spouse, C., as his dependent have not been met. 38 U.S.C. §§ 1115, 5107, 5110, 5124 (2012); 38 C.F.R. § 3.1(j), 3.4, 3.204, 3.205, 3.216, 3.401 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from October 1987 to October 1991 and from September 1997 to June 1998. He also served in the North Carolina Army National Guard from April 1997 to June 2000, and had additional unverified Reserve Component service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In his September 2015 substantive appeal, the Veteran requested a hearing before the Board to be held at a local VA office. Such a hearing was initially scheduled for September 2018, but the Veteran requested it be rescheduled due to the hurricane. The hearing was rescheduled for November 2018, but through an October 2018 statement by his representative the Veteran instructed that the hearing request was withdrawn and the Board should adjudicate the issue on the evidence of record. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Entitlement to recognition of C. as the Veteran’s dependent spouse for VA purposes from July 2010 to October 2011. A veteran who is in receipt of disability compensation of 30 percent or more is entitled to an additional allowance for each dependent. 38 U.S.C. § 1115. In addition, 38 U.S.C. § 5110(f) provides that “[a]n 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.” A “spouse” is defined for VA purposes as a person whose marriage to the veteran is valid under 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 C.F.R. §§ 3.1(j), 3.50(a). 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 C.F.R. § 103(c); 38 C.F.R. § 3.1(j). 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 that meets the requirements of 38 C.F.R. § 3.205 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. 38 C.F.R. § 3.205(b). However, when the claimant’s statement concerning marriage conflicts with other evidence of record, additional evidence is required to accept a marriage as valid or as dissolved. 38 C.F.R. § 3.204(a)(2). Current law allows that VA will, with certain exceptions, accept the statement of a claimant as proof of marriage, dissolution of a marriage, or death of a dependent. See 38 U.S.C. § 5124; 38 C.F.R. § 3.204(a)(1). Such statements should include the following details: (1) the date (month and year) and place of the event; (2) the full name and relationship of the other person to the claimant; and (3) the social security number of any dependent for whom the claimant is seeking benefits. For such a statement to be accepted, there can be no indication on its face that raises a question of its validity, nor a reasonable indication, in the claimant’s statement or otherwise, of fraud or misrepresentation of the relationships in question. 38 U.S.C. § 5124(c); 38 C.F.R. § 3.204(a)(2). In addition, the United States Court of Appeals for Veterans Claims (“Court”) has found that, while acceptance of a claimant’s written statement may be evidence of the existence of a dependent, it is only acceptable when it contains specific, required information. McColley v. West, 13 Vet. App. 553, 557 (2000). Finally, a claimant must provide the social security number of any dependent on whose behalf he or she is seeking benefits. 38 C.F.R. § 3.216. The Veteran in this case asserts that he is eligible for additional dependency benefits for C., his former spouse, from July 2010, the date they were married, to October 2011, the date they were divorced. As an initial matter, the Board finds that the Veteran and C. were divorced in October 2011. See Judgment for Absolute Divorce Before the Clerk, submitted in September 2012. Therefore, from October 2011, forward, the Veteran is not entitled to an increased rate of compensation based on an additional dependency allowance for C. because they were not married. However, the Board will consider whether the Veteran is entitled to an additional dependency allowance for C. prior to the October 2011 divorce. The Veteran has been in receipt of a combined disability rating of at least 50 percent since July 25, 2000. As such, the threshold criteria of a minimum 30 percent disability rating for basic entitlement to additional payment for dependents have been met since July 25, 2000. 38 U.S.C. § 1115. In March 2011, the Veteran submitted VA Form 21-686c, Declaration of Status of Dependents, notifying VA of his July 2010 marriage to C. However, he did not submit C.’s social security number or complete information about C.’s prior marriages. In October 2011, the RO asked the Veteran to submit C.’s social security number and additional information about C.’s prior marriages. The letter explicitly stated that the Veteran had up to one year to submit this information or evidence to VA within one year of the date on this letter. It was not until December 2012 that the Veteran submitted C.’s social security number to VA for the first time. The record does not show that the Veteran provided C’s social security number within one year of the October 2011 letter. Furthermore, the Veteran was aware of such issue, as demonstrated by his September 2012 statements that he did not have C’s social security number. The Board finds that, while the Veteran partially provided relevant information regarding C.’s dependency status, he did not timely provide sufficient evidence to satisfy VA requirements for additional dependency benefits based on C. As he did not provide C’s social security number within one year of the October 2011 letter notifying him that such information was required, his eventual submission of the required evidence must be considered a new claim. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). As the new claim was not received within one year of the Veteran’s date of marriage and in fact was received more than a year after his divorce, the claim cannot be granted. See 38 C.F.R. § 3.401. Accordingly, the preponderance of the evidence is against an increased rate of compensation based on an additional dependency allowance for the Veteran’s former spouse, C, from July 2010 to October 2011. Therefore, the benefit-of-the-doubt doctrine is not applicable and an increased dependency rate is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. GALLAGHER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel