Citation Nr: 1015000 Decision Date: 04/20/10 Archive Date: 04/30/10 DOCKET NO. 93-24 464 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUES 1. Entitlement of the appellant to receive, on behalf of the Veteran's minor child, an apportionment of the Veteran's disability compensation in an amount greater than $20.00, from June 1, 1992, to February 28, 1994. 2. Entitlement of the appellant to receive, on behalf of the Veteran's minor child, an apportionment of the Veteran's disability compensation in an amount greater than $50.00, from March 1, 1994, to November 30, 1995. 3. Entitlement of the appellant to receive, on behalf of the Veteran's minor child, an apportionment of the Veteran's disability compensation in an amount greater than $90.00, on and after December 1, 1995. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States Appellee represented by: The American Legion ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran (the appellee) had active military service from March 1977 to March 1979. The appellant has custody of the Veteran's minor child, D.H. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a July 1992 decision, in which the RO granted the appellant's claim for an apportionment of the Veteran's disability compensation. In August 1992, the RO granted the appellant an apportionment of $20 per month, effective June 1, 1992. The appellant filed a notice of disagreement (NOD) as to the amount awarded, and the RO issued a statement of the case (SOC) in April 1993. A copy of the SOC was issued to the Veteran. The appellant filed a VA Form 9 (Appeal to Board of Veterans' Appeals) in May 1993. In February 1996, the Board remanded the appellant's claims to the RO for additional development. In July 1996, the RO granted the appellant an increased apportionment to $50.00, effective December 1, 1994. Thereafter, in January 1997, the RO awarded an earlier effective date of March 1, 1994, for the $50.00 monthly apportionment. In a February 2000 decision, the Board determined that a timely notice of disagreement with the denial of increased apportionment of the Veteran's disability compensation on behalf of the Veteran's minor child had been filed. In a separate, concurrently issued decision, the Board remanded the appellant's claim for an increased apportionment of the Veteran's disability compensation on behalf of the Veteran's minor child to the RO, for additional development. In a September 2004 decision, the Board denied the appellant's claims for an increased apportionment of the Veteran's benefits on behalf of the Veteran's minor child. The appellant timely appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2006 Memorandum Decision, the Court vacated the Board's September 2004 decision, finding that the Board failed to provide an adequate statement of reasons or bases in denying the appellant's request for an increase in her apportionment. In this regard, the Court found that the Board did not articulate the criteria it applied to explain why the appellant was not entitled to more than $20 apportionment prior to March 1, 1994, or more than a $50 apportionment after March 1, 1994. Therefore, the Court remanded the matters on appeal to the Board for further proceedings consistent with the Court's Decision. In an August 2007 decision, the Board denied the appellant's claim for an apportionment of the Veteran's disability compensation, on behalf of the Veteran's minor child, in an amount greater than $20, from June 1, 1992. In that decision, the Board also denied the appellant's claim for an apportionment of the Veteran's disability compensation, on behalf of the Veteran's minor child, in an amount greater than $50, from March 1, 1994, to November 30, 1995. The Board then granted an increased apportionment of $90, on behalf of the Veteran's minor child, from December 1, 1995. Hence, the Board has characterized the appeal as encompassing the matters set forth on the title page. The appellant appealed the Board's August 2007 decision to the Court. In a May 2009 Memorandum Decision, the Court vacated the Board's August 2007 decision, finding that the Board failed to provide an adequate statement of reasons or bases in denying the appellant's request for an increase in her apportionment. Therefore, the Court remanded the matters on appeal to the Board for further proceedings consistent with the Court's Decision. For the reasons expressed below, the matters on appeal are, again, being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify each party when further action, on their parts, is required. As a final preliminary matter, the Board notes that, in the May 2009 Memorandum Decision, the Court raised a question of whether the appellant was assigned the appropriate effective date for the initial grant of apportionment of the Veteran's disability compensation, on behalf of the Veteran's minor child. This issue has not been raised by the appellant or addressed by the RO. As such, this matter is not properly before the Board, and is thus referred to the RO for appropriate action. REMAND In light of points raised in the Court's May 2009 Memorandum Decision, and the Board's review of the claims file, further RO action on the claims on appeal is warranted. In its decision, the Court indicated that it appears that there was money that was not accounted for during the time frame pertinent to this appeal. Specifically, while the Veteran was incarcerated, from September 1988 to February 1994, the Veteran's wife received an apportionment of benefits, on behalf of the Veteran's minor children. The appellant also received an apportionment of benefits, on behalf of the Veteran's minor child, beginning in June 1992. The Court noted that, at times, the payments to all parties did not add up to the total award. The Court remarked, therefore, that there may have been additional money that could have been paid to the appellant without causing any other payee a reduction in payments. The Court further indicated that the Board should more fully address the appellant's contention that all of the Veteran's dependents should receive equal apportionments of the Veteran's disability benefits. The Board points out that the payment history with regard to the Veteran's disability compensation is rather complex, as are some of the points raised in the Court's Memorandum Decision. Therefore, to facilitate full and meaningful discussion (and, perhaps, resolution) of the concerns raised by the Court, a remand is necessary for the RO to provide a full financial accounting. On remand, the RO should complete an audit of payments and withheld amounts with regard to all payees. A review of the record shows that such an audit has not taken place. While the matter is on remand, to ensure that all due process requirements are met, the RO should also give the appellant another opportunity to provide information and/or evidence pertinent to the matters on appeal. The RO's letter to the appellant should explain that she has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2009) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2009). The actions identified herein are consistent with the duties imposed by the Veterans Claim Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should send to the appellant and her representative a letter requesting that the appellant provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. The RO should also clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the appellant responds, the RO should assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the appellant and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. The RO should obtain a complete audit of VA payments and withholdings, clearly itemizing the following: a. The amounts of all types of payments (readjustment pay, retirement pay, compensation, etc.) the Veteran has received since separation from service in March 1979, and the periods of time encompassed by the payments b. The amounts withheld and paid to the Veteran's wife on behalf of her dependent children, the appellant on behalf of her dependent child, and G.H., the Veteran's adult child. If there are any apportionments to other individuals, these should be itemized as well. c. Any amounts not accounted for in the two items listed above. 4. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal in light of all pertinent evidence and legal authority. 6. If any benefit sought on appeal remains denied, the RO must furnish to the parties and their representatives an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The parties need take no action until otherwise notified, but they may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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. 2009). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2009).