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).