Case 23034765: Back
DecisionVeterans-appeals decision document (court public records) · June 21, 2023 · REASONS AND BASES FOR FINDINGS AND CONCLUSION
Conditions Claimed
Official 2026 VA monthly compensation, including the 2.8% COLA increase.
Dependent add-ons start at a 30% rating. Child-only and dependent-parent rates: see the full 2026 pay chart.
2026 base rates, all ratings (veteran alone)
| Rating | Monthly (2026, incl. 2.8% COLA) |
|---|---|
| 10% | $180.42 |
| 20% | $356.66 |
| 30% | $552.47 |
| 40% | $795.84 |
| 50% | $1,132.90 |
| 60% | $1,435.02 |
| 70% | $1,808.45 |
| 80% | $2,102.15 |
| 90% | $2,362.30 |
| 100% | $3,938.58 |
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Issues on Appeal
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Why It Was Decided This Way
In May 2019, the Board found that new and material evidence had not been received to reopen the appellant's claim of entitlement to recognition as the Veteran's surviving spouse.
The Board found that new and material evidence had been received to reopen the appellant's claim and denied this claim on the merits in February 2021.
The "clear and convincing proof" standard is more onerous than the "benefit of the doubt" standard of proof usually employed in VA benefits adjudication, as established in 38 U.
Although VA must apply Alabama's requirement of clear and convincing evidence that a common law marriage exists, the underlying elements are decided as questions of fact, and the benefit of the doubt applies to those elements.
The Board's statement of reasons and bases did not address how the benefit of the doubt doctrine applies to the operative question of fact-whether the appellant and the veteran had a present agreement or mutual consent to commence a permanent, exclusive marital relationship.
While the Board exhaustively discussed evidence of the parties' postdivorce residences, statements, and behavior as they related to the potential existence of the common law marital relationship, the Board failed to consider the evidence in light of the appellant's argument that the common law marital relationship commenced around 1995 or 1996.
The Board failed to distinguish between the pre-1995 period and the post-1995 period and instead addressed the entirety of the nearly 20 years between the parties' divorce and the veteran's death as one temporal period.
Remand is warranted because the Board failed to address whether, specifically, the VA and medical treatment records (and lay evidence) following the 1995 events alleged by the appellant supported that the parties had mutually consented to enter into a permanent common law marital relationship exclusive of all others.
Authorities Cited
Regulations Cited (38 CFR / 38 USC)
Denial Type
Not New Material
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