Aguilar v. Derwinski

KRAMER, Associate Judge,

concurring.

Even though both the majority and the Board of Veterans’ Appeals (BVA) ignore the fact that appellant’s first marriage appears to have been annulled by court decree on August 25,1972,1 agree, nevertheless, that the BVA decision should be affirmed, but on a ground different from that postulated by the majority. In this case, the preponderance of the evidence is against the appellant on the issue of whether she was married to the veteran— especially in light of the lack of a marriage certificate, the appellant’s non-truthful statements about her first marriage, and the affidavits of the veteran’s father and others which dispute the appellant’s alleged marriage to the veteran. Based on this record, the preponderance of the evidence is against the appellant on the issue of status and any BVA determination to this effect would have to be upheld by the Court. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990).

While the majority opinion vaguely seems to suggest at pages 22-23, without authority, that a different (albeit undefined) standard of proof applies to establishing a claimant’s status as a veteran or a veteran’s spouse from that required to decide the merits of other issues material to a claim, no authority is cited for this implica*24tion. To the extent that the opinion is meant to convey such a result, I disagree.

The initial burden is on the claimant to present evidence of a well-grounded claim. See 38 U.S.C. § 5107(a) (formerly § 3007(a)). As suggested by subsection (b) of the same section, all “issue[s] material to the determination of the matter” are to be treated alike. See 38 U.S.C. § 5107(b) (formerly § 3007(b)). Thus, by definition, a well-grounded claim is one which must be well grounded as to each material issue, including the status of a claimant. See Moore v. Derwinski, 1 Vet.App. 401, 405 (1991) (while it need not be conclusive, a well-grounded claim must be plausible, either meritorious on its own or capable of substantiation). Once a claim is well-grounded, the claimant is to prevail unless the preponderance of the evidence' is against the claimant on any material issue including status. See 38 U.S.C. § 5107(b) (formerly § 3007(b)) (when “there is an approximate balance of positive and negative evidence regarding the merits of an issue material [including status] to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant”) (emphasis added); Gilbert, at 53-54 (in order to prevail on the merits of his claim, a claimant need only show that the evidence both for and against him is in relative equipoise).