Citation Nr: 21068455 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-06 600 DATE: November 10, 2021 ORDER Entitlement to the addition of J.C. 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 disabilities had a combined disability rating of 40 percent from July 24, 2008. 2. The Veteran has not provided the requested information and documents regarding his and J.C.'s complete marital history. CONCLUSION OF LAW The criteria for the addition of J.C. 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 August 1991 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 decision of a Department of Veterans Affairs (VA) Regional Office (RO). Within the February 2018 VA Form 9, Appeal to the Board, the Veteran requested a video conference hearing before the Board at a local RO. A January 2021 notice as to the scheduled March 2021 hearing was returned as undeliverable. A June 2021 hearing letter notified the Veteran that his hearing was scheduled for September 21, 2021. However, according to the Veteran's sister, who contacted the RO on September 17, 2021, the Veteran was incarcerated since August 30, 2021. While VA does not have authority to require a correctional institution to release a veteran to attend a Board hearing at the closest RO, the Board is mindful that incarcerated veterans are entitled to the same care and consideration given to their fellow veterans. However, the Board finds it significant that there is no evidence that the June 2021 hearing notification, sent to the Veteran at his address of record prior to his incarceration in August 2021, was not received or was otherwise undeliverable. As such, the Board finds that the Veteran was properly informed of the scheduled Board hearing, despite his incarceration. However, there is no evidence that the Veteran requested postponement or rescheduling of the hearing. When an appellant fails to appear for a scheduled hearing and has not requested a postponement, the case will be processed as though the request for a hearing had been withdrawn. Thus, the Board will proceed with consideration of the Veteran's appeal based on the evidence of record. Notably, the Veteran submitted additional evidence after certification of the appeal to the Board, however, as the Veteran's VA Form 9 was filed after February 2, 2013, an automatic waiver of initial AOJ review applies to all evidence submitted by the Veteran. 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"). Accordingly, the Board may consider this evidence in the first instance. Analysis 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). The Veteran's service-connected disabilities had a combined disability rating of 40 percent from July 24, 2008; however, the Board finds that he is not entitled to additional dependency benefits 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. In the most recent July 2013 VA 21-686c Application Request To Add And/Or Remove Dependents, the Veteran reported he married J.C. in January 2001, as confirmed in a marriage certificate. In a July 2008 VA Form 21-526, Veteran's Application for Compensation and/or Pension, the Veteran reported he married J.C. in January 2000 (in error) and that his marriage to J.C. ended in November 2007 in California. Notably, it appears the Veteran used white-out to remove the word "divorced." In the April 2010 VA Form 21-526, the Veteran reported he was separated but did not mark the boxes that he was married or divorced and did not fill out any information regarding his spouse. In the March 2011 VA Form 21-526, the Veteran reported that he was married to J.C. since June 2000 (error) and that he was separated from her. His spouse's birth date and social security number (SSN) were not provided, as well as the details of the Veteran's and the spouse's prior marital history. In a February 2012, VA Form 21-0516, Improved Pension Eligibility Verification Report, the Veteran reported that he was not married. In a May 2014 application for pension benefits, the Veteran reported that he was married but separated. In the May 2014, Improved Pension Eligibility Verification Report, the Veteran reported he was married but not living with his spouse. Notably, a search of the Superior Court of California, County of Santa Barbara public records appear to show J.C. filed a dissolution of marriage from the Veteran in September 2009 that concluded with a judgment and order. However, the specific details of the documents cannot be viewed through the public records search. These documents show the Veteran has been inconsistent as to whether he was married to J.C. In an April 2011 letter, VA informed the Veteran that the information he sent regarding his dependents was incomplete and that a completed VA Form 21-686c, to include his spouse's SSN and the complete marital history of the Veteran and his spouse were required. In May 2011 correspondence, the Veteran provided J.C.'s social security number. However, the requested marital history of the Veteran and his spouse were not provided. As a result, in August 2011, VA again requested the Veteran complete VA Form 21-686c to include question 6 (Veteran's marriages) and 8 (spouse's marriage), submit divorce certificate or death decree of J.C.'s prior marriages, and submit the Veteran's divorce decree of his prior marriage. He was informed that he must submit the documents within one year of the letter. A dependency fact sheet was also provided informing him the type of information needed to obtain dependency benefits for his spouse. In September 2011, the Veteran provided a copy of his marriage certificate to J.C., which shows J.C. had been married three times previously and the Veteran was married once before. In a statement provided that same month, the Veteran reported that he divorced M.R. since January 1996 when he heard from M.R.'s sister that M.R. filed for divorce. In October 2011, the RO denied the claim for spouse dependency benefits because he failed to provide copies of divorce decrees or death certificates showing that all prior marriages for the Veteran and his spouse were legally terminated and a properly completed VA Form 21-686c. He was informed that if the evidence was received by August 2012, the claim would continue to be processed, however, if filed after that date, it would be considered a new claim. In an October 2011 notification letter, VA informed the Veteran again that he was being paid as a single Veteran with no dependents. In a November 2011 statement, the Veteran wrote that he submitted the requested documents and to requested VA address the dependency issue. In January 2012, the Veteran provided another copy of his marriage certificate to J.C. and VA Form 21-686c. He provided his marital history; however, he crossed out the section regarding his spouse's marriage history and left it blank. The Veteran wrote that he submitted his dependency claims in April 2004 (the Board notes the Veteran did not file a claim for dependency benefits in 2004 and he was also not rated as 30 percent disabling until July 2008). In July 2012, the Veteran submitted a copy of a Santa Barbara court document that appears to be a judgment for dissolution of marriage in August 1996 from the Veteran's previous marriage to M.R. In a July 2012 statement, the Veteran wrote that his prior wife would not provide copies of their divorce papers. (The Board notes that the Veteran may contact the Santa Barbara court directly to obtain a copy of his divorce decree.) In the July 2012 VA Form 21-686c, the Veteran reported J.C. had three prior marriages, one was annulled and two ended in divorce. He provided the names of J.C.'s prior three spouses and the dates and places of marriage and places of termination of the marriage, however, the dates of termination of the marriages were not provided. In July 2013, the Veteran submitted an additional VA form 21-686c, as well as another copy of his marriage certificate to J.C. In February 2014, the Veteran requested retroactive payments for his dependents since April 2008. In December 2016, the RO denied the dependency claim and explained that the July 2012 notice of entry of judgment was not a final divorce decree to M.R. and that he failed to provide the details of J.C.'s complete martial history for her previous marriages (to whom married, how marriages terminated, and date and place marriages terminated). The RO requested the Veteran complete an additional VA Form 21-686c. In September 2017, the Veteran requested that his spouse be removed as a dependent because she had passed away in 2015. In October 2017, the RO explained that J.C. was not added as a dependent because she was never added to his award because the required documentation was not submitted. In the November 2017 notice of disagreement, the Veteran contended he submitted the requested VA Form 21-686c in January 2012. In the January 2018 VA Form 9, the Veteran reported that he submitted all the required documents in 2008. In a July 2018 statement, the Veteran provided a copy of a judgment of dissolution of marriage between J.C. and E.A. that was entered in March 1991. He reported that he could not obtain J.C.'s prior spouse D.R.'s death certificate from 1980 because it was no longer available. Notably, information as to J.C.'s prior marriage to F.A. was not provided. As detailed above, it is unclear whether the Veteran was married to J.C. after being in receipt of a combined disability rating of 40 percent as of 2008 given that he reported that their marriage terminated in November 2007 and in the February 2012, VA Form 21-0516, Improved Pension Eligibility Verification Report, the Veteran reported that he was not married. Therefore, he has been inconsistent as to whether he was married to J.C. for the entire appeal period. The Santa Barbara county public records also appear to support the finding that the Veteran and J.C. were not married. However, even if the Veteran was married to J.C. until her reported death in 2015, as noted above, to date, the Veteran has not provided all of the requested documents or information. Specifically, the Veteran has not provided the following after being requested to do so on multiple occasions: (1) his divorce decree to M.R.; (2) the divorce decrees for two of J.C.'s husbands; and (3) a death certificate for J.C.'s former husband who reportedly passed away. As determined by the RO, a judgment for dissolution of marriage is also insufficient. Although the Veteran reported the death certificate for J.R. was no longer available, he did not provide correspondence from an agency confirming this fact. To date, the Veteran has not responded with all of the requested documents after VA specifically requested the documents on multiple occasions over a six-year period. 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 April 2011, August 2011, October 2011, and December 2016, VA requested information and documents regarding the Veteran's and his spouse's complete marital history. To date, despite being informed of his duty to provide such information, the Veteran did not provide all of the requested evidence that the Veteran's and J.C.'s prior marriages were legally terminated. Accordingly, even if the Veteran was married to J.C. since July 2008, given that the Veteran has failed to provide the requested documentation, as requested on four occasions, entitlement to the addition of J.C. 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.