Citation Nr: 21067120 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-29 217 DATE: November 3, 2021 ORDER Entitlement to the addition of D.M. as the Veteran's dependent spouse for additional Department of Veterans Affairs (VA) disability compensation benefits is denied. FINDINGS OF FACT 1. The Veteran's service-connected disability (inflammatory bowel disease) was rated as noncompensable prior to August 11, 2017, and 30 percent disabling thereafter. 2. The Veteran has not provided the requested information regarding his alleged common law marriage to D.M. CONCLUSION OF LAW The criteria for the addition of D.M. as the Veteran's dependent spouse for additional VA disability compensation benefits have not been met. 38 U.S.C. §§ 101(31), 1115, 5107, 5124; 38 C.F.R. §§ 3.1(j), 3.4, 3.204, 3.205, 3.216. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1987 to January 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has a separate appeal involving entitlement to an initial higher rating for IBD and entitlement to service connection for diabetes mellitus. These issues will be addressed in a separate Board decision. In May 2021, the Veteran withdrew his Board hearing request. A March 2019 Decision Review Officer (DRO) hearing transcript is of record. In this case, service connection is currently in effect for IBD rated as noncompensable prior to August 11, 2017, and 30 percent thereafter. Thus, the Veteran's combined disability rating has not met the threshold rating of 30 percent to receive additional compensation for a dependent spouse. 38 U.S.C. §§ 1114(c), 1115, 1134, 1135. Although the Board has remanded the claim for a compensable rating for IBS prior to August 11, 2017, as explained below, given that the Veteran has failed to provide the requested information to validate his common law marriage, even if he was rated as 30 percent disabling prior to August 11, 2017, the claim would still be denied. Therefore, a remand of the matter is not necessary while adjudication of the higher rating claim for IBD is pending. The Veteran may file a Supplemental Claim and submit evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Although the RO adjudicated the issue of entitlement to dependency benefits prior to August 11, 2017, and entitlement to dependency benefits from August 11, 2017, as two, separate issues, because the appeal stems from the March 2015 decision that denied entitlement to dependency benefits for D.M., the entire appeal period is before the Board, which includes the period after August 11, 2017. Notably, given that a statement of the case (SOC) was issued in January 2020 and an automatic waiver applies to all evidence submitted by the Veteran, the Veteran is not prejudiced in the Board proceeding with the appeal. See 38 C.F.R. §§ 19.31(b)(1), 19.37(a). See 38 U.S.C. § 7105(e); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7015 (e)(1) to provide an automatic waiver of initial AOJ review of evidence at the time of or after the submission of a substantive appeal where the substantive appeal is filed on or after February 2, 2013); 38 C.F.R. §§ 20.800, 20.1304. See 38 U.S.C. § 7105(e) (only providing for waiver of initial review by the Board "if the claimant or the claimant's representative submits evidence"). VA defines a "marriage" as a marriage valid under the law of the place where the parties resided at the time of marriage, or the laws of the place where the parties resided when the right to benefits accrued. 38 U.S.C. § 103(c); 38 C.F.R. § 3.1(j); Sanders v. Brown, 6 Vet. App. 17 (1993). The provisions of 38 C.F.R. § 3.205 provide that marriage may established by one of several types of evidence including a copy of the public record of marriage, an official report from the service department as to a marriage which occurred while the veteran was in service, or an affidavit of the clergyman or magistrate who officiated. 38 C.F.R. § 3.205(a). 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). 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. 38 C.F.R. § 3.205(b). Although the Veteran was not awarded a 30 percent rating prior to August 11, 2017, the Board finds that he is not entitled to additional dependency for his spouse for the entire appeal for the reasons explained below. The Board points out that the Veteran has reported conflicting information as to his marital status. For example, in the August 2014 VA Form 21-526, Veteran's Application for Compensation and/or Pension, the Veteran reported he married D.M. by clergyman or public official and that they are separated due to marital problems. In the August 2014 VA 21-686c Application Request To Add And/Or Remove Dependents, the Veteran reported he was separated from D.M. and that they got married in December 1982 in South Carolina. He reported he did not support his wife financially. He did not report whether he lived with D.M. In the August 2014 notification letter, VA informed the Veteran that D.M. could not be added as a dependent spouse because he reported they were separated, and an updated status of his marriage was necessary. In the May 2018 notice of disagreement, the Veteran reported that he and D.M. live separately for employment purposes but that they are still in a supportive relationship together. A February 2019 VA Form 27-0820, Report of General Information, documents the Veteran inquired as to whether he can receive dependency benefits for a spouse if they are separated and the Veteran has reported that he is not contributing to her support. He was informed that the dependent spouse remains on the Veteran's award during a separation, as long as they are still married whether he contributes or not, and she is not asking for an apportionment. He was informed that if VA Form 21-686c is less than eight years old and the RO can confirm the information is still current, the spouse can be added while they are separated. At the March 2019 DRO hearing, the Decision Review Officer informed the Veteran that VA Form 21-686c must be completed to verify his current marital status. He was again informed that as long as he was married to D.M. but separated, D.M. could be added to his award. In March 2019, the Veteran submitted VA Form 21-686c in which he reported that he married D.M. in December 1982 by common law marriage in Columbia, South Carolina. He reported that they do not live together due to job requirements. In September 2019, VA requested assistance from the Veteran that shows the Veteran and D.M. spouse are separated and the reason for this separation (i.e. marital discord, medical reasons, etc.). VA also noted the Veteran had reported in his original application, VA Form 21-526, Veteran's Application for Compensation and/or Pension received in August 2014, that he married D.M. by clergy but on the March 2019 VA Form 21-686c, Declaration of Status of Dependents, he listed he was married by common law to D.M. Therefore, the RO again requested information as to how he and D.M. were married, and to include copies of any documents to support his statement. In January 2020, an SOC was issued as to a denial of dependency benefits from August 11, 2017. The Veteran submitted an additional VA Form 21-686c in September 2021 in which he reported he was married to D.M. and that he lives with his spouse. In September 2021, VA requested the Veteran and D.M. both complete and return the enclosed VA Form 21-4170, Statement of Marital Relationship, to assist in establishing their common law marriage. VA also requested that two acquaintances complete and return the enclosed VA Form 21P-4171, Supporting Statement Regarding Marriage, to assist in establishing the common law marriage. The Board notes that the May 1986 service enlistment and September 1990 separation examination reports document that D.M. was listed as the Veteran's spouse. A November 2013 VA treatment record documents the Veteran reported his wife works out of state in Virginia. The Veteran has not responded with the requested documents or provided evidence supporting the Veteran's and D.M.'s purported common law marriage. As detailed above, the Veteran first indicated that they were married but separated due to marital problems in the August 2014 VA Form 21-526 and then in the August 2014 VA Form 21-686c, the Veteran indicated he and D.M. were separated and lived separate for employment purposes. However, in the September 2021 VA Form 21-686c, the Veteran reported he lived with his spouse. As noted above, when the claimant's statement concerning marriage conflicts with other evidence of record, as is the case here, additional evidence is required to accept a marriage as valid or as dissolved. 38 C.F.R. § 3.204(a)(2). The "duty to assist is not always a one-way street," and the Veteran is obligated to cooperate in the development of the pending claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Here, in September 2019 and September 2021, VA requested information from the Veteran to confirm the Veteran's and D.M.'s common law marriage. To date, despite being informed of his duty to provide such information, the Veteran did not provide evidence confirming that he and D.M. are married by common law marriage. Notably, under South Carolina law, common law marriage is recognized prior to July 24, 2019. See Stone v. Thompson, 428 S.C. 79, 833 S.E. 2d 266, 270 (S.C. 2019) (declaring that "no individual may enter into a common law marriage in South Carolina after the date of this opinion," July 24, 2019, but declining to "undo[ ]" common-law marriages that "heretofore were considered valid"). Under South Carolina law: common-law marriage is formed when the parties contract to be married, either expressly or impliedly by circumstance. The key element in discerning whether parties are common-law married is mutual assent: each party must intend to be married to the other and understand the other's intent. Some factors to which courts have looked to discern the parties' intent include tax returns, documents filed under penalty of perjury, introductions in public, contracts, and checking accounts. Appellate courts have previously recognized two lines of cases regarding common-law marriage. The first holds that a party proves a common-law marriage by a preponderance of the evidence. The second relies on "a strong presumption in favor of marriage by cohabitation, apparently matrimonial, coupled with social acceptance over a long period of time." This presumptionlike common-law marriage itselfis based on a conception of morality and favors marriage over concubinage and legitimacy over bastardy. It can only be overcome by "strong, cogent, satisfactory or conclusive evidence" showing the parties are not married. This [Supreme Court of South Carolina] has held that once a common-law marriage becomes complete, "no act or disavowal" can invalidate it. Id. at 270-71 (internal citations and quotations omitted). Again, the Veteran has not provided documentation to establish the above factors, to include mutual assent that each party intended to be married to the other and understand the other's intent. Accordingly, even if the Veteran was rated as 30 percent disabling prior to August 11, 2017, the Veteran would not be entitled to additional dependency for D.M. In addition, entitlement to additional dependency benefits from August 11, 2017, is also not warranted, given that the Veteran has failed to provide the requested documentation to confirm his common law marriage to D.M., as requested on two occasions. Therefore, entitlement to the addition of D.M. as his dependent spouse for additional VA disability compensation benefits is denied for the entire appeal period. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah Campbell, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.