Citation Nr: 0809676 Decision Date: 03/21/08 Archive Date: 04/03/08 DOCKET NO. 02-00 229A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to apportionment of the veteran's benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD John Francis, Associate Counsel INTRODUCTION The veteran served on active duty from January 1968 to January 1970. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2001 decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted an apportionment of the veteran's benefits to his spouse. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. REMAND In the opinion of the Board, additional development is necessary. In May 2000, the veteran's spouse petitioned VA for a portion of the veteran's benefits. The RO granted an apportionment in January 2001, and the veteran filed a timely notice of disagreement in March 2001. In correspondence in March 2001, October 2001, and in his later substantive appeal, the veteran contended that (1) his daughter had married and was no longer a dependent of his spouse, (2) that expenses that he paid to a caretaker should be considered as medical expenses in the determination of his financial status, (3) that his spouse actually earned more than she reported, and (4) that apportionment caused him financial hardship. The RO provided a statement of the case to both parties in January 2002, and the veteran filed a timely substantive appeal the same month. However, the RO closed out the appeal in the computerized Veterans Appeals Control and Locator System (VACOLS) for failure to respond to the statement of the case, an action which was erroneous. Additional financial information was developed in a VA field examination in March 2002. The veteran submitted additional evidence in August 2002 regarding caretaker expenses. It is not clear in the record what additional evidence, if any, was developed regarding dependency and financial status of both parties. In December 2002, the RO informed the veteran's spouse of the intention to reduce the amount of her apportioned benefits and advised her of her right to a hearing and to submit additional evidence. In undated correspondence, the RO provided both parties with a decision that reduced, but did not eliminate, the amount of apportioned benefits payable to the spouse. The decision noted that action had been taken to account for the marriage of their daughter and to categorize caretaker expenses as medical expenses. There is no indication in the record that the issues of spouse's income or level of hardship to the veteran were developed and considered in the decision. Both parties were advised of a right to express disagreement with the decision within one year. No notices of disagreement have been received. However, the veteran did not withdraw his appeal. The veteran has not received the maximum benefit possible, and the issues of the spouse's income and hardship to the veteran have not been addressed. Additional development should be conducted, if necessary, and a supplemental statement of the case provided to both parties prior to adjudication by the Board. 38 C.F.R. § 19.31 (b) (c) 20.302, 20.501 (2007). Accordingly, the case is REMANDED for the following action: 1. Inquire whether the veteran is satisfied with the undated apportionment decision and desires to withdraw his appeal. If he wishes to continue his appeal, inquire as to whether he still desires to have a hearing as requested in his March 2001 notice of disagreement. If his response is affirmative, schedule the hearing after providing appropriate notice. 2. If the veteran desires to continue the appeal and, if necessary, request financial information from both parties to determine their level of income and degree of hardship to the veteran over the period of time covered by this appeal. 3. Then, readjudicate the entitlement to apportionment of the veteran's benefits. Provide the veteran, his spouse, and their representatives, if any, with a supplemental statement of the case and an opportunity to respond. Thereafter, return the case to the Board as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).