Citation Nr: 1310587 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-36 679 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased apportionment of the Veteran's VA compensation benefits in excess of $225 from December 1, 2009 to June 29, 2011, and in excess of $150 after June [redacted], 2011. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from January 1974 to November 1976. The appellant is the Veteran's estranged spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In the decision, the RO granted the appellant's claim for an apportioned share of the Veteran's VA benefits, and awarded her benefits in the amount of $225 a month, effective December 1, 2009. In her substantive appeal, the appellant requested a hearing at the Roanoke RO before the Veterans Law Judge and was scheduled for a hearing on January 26, 2012. However, in a letter date stamped as received on January 13, 2012, the appellant explained that due to her physical condition and financial constraints, she was unable to travel to the RO to attend her hearing. She asked if any type of assistance could be provided to help her travel to the RO for her hearing, but added that if no assistance was available, then the appeal should be decided based on the evidence of record. While the Board sympathizes with the appellant's situation, the Board is unaware at this time of any special accommodations which can be provided by way of financial assistance or transportation, either by the RO or the Board, to help a claimant travel to the designated location of his or her hearing. As such, the appellant's hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Board notes that the appellant is self-represented in this case and the Veteran is represented by the organization listed on the title page. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran and the appellant if further action is required. REMAND The appellant claims that she is entitled to an increased apportionment of the Veteran's VA compensation benefits. By way of background, the Veteran has a combined 60 percent rating for his service-connected disabilities, in effect from March 1, 2007. In addition, the Veteran was also granted a total disability rating based on individual unemployability due to his service-connected disabilities (TDIU), effective September 11, 2006. In her February 2009 claim, the appellant indicated that she and the Veteran had separated, and sought an apportionment of the Veteran's VA benefits on behalf of herself their two sons, D.B., Jr., and D.B. In the January 2010 decision, the RO awarded the appellant an apportionment of the Veteran's VA benefits in the amount of $225, effective December 1, 2009, which took into consideration the appellant and her youngest son. The decision indicated that this amount would decrease to $150 when her second son turned eighteen years of age on June [redacted], 2011. The appellant thereafter filed a notice of disagreement (NOD) and requested an increased apportionment of the Veteran's VA compensation benefits. According to the appellant, the $225 awarded was not enough for their expenses. She also claimed that her eldest son D.B., Jr. should have been taken into consideration by the RO when originally determining how much of the Veteran's benefits should be apportioned. In a March 2010 letter, the RO informed the appellant that her eldest son was over eighteen years of age, and therefore eligible to receive benefits in his own right, and to file for an apportionment on his own. In the August 2010 substantive appeal, the appellant continued her appeal for an increased apportionment of the Veteran's VA benefits on the basis that their second son, D.B., was still a minor and required additional financial assistance from the Veteran. VA regulations provide for two types of apportionments. A "general" apportionment may be paid under the circumstances set forth in 38 C.F.R. § 3.450 (2012). More specifically, 38 C.F.R. § 3.450(a)(1)(ii) provides that an apportionment may be paid if the Veteran is not residing with his or her spouse, or if the Veteran's children are not residing with the Veteran and the Veteran is not reasonably discharging his or her responsibility for the spouse's or children's support. It is not necessary for the claimant to establish the existence of hardship in order to obtain an apportionment under 38 C.F.R. § 3.450. See Hall v. Brown, 5 Vet. App. 294 (1993). The second type of apportionment is a "special" apportionment which may be paid under the circumstances set forth in 38 C.F.R. § 3.451 (2012). That regulation provides that, without regard to any other provision regarding apportionment, where hardship is shown to exist, compensation benefits payable may be apportioned between the Veteran and his or her dependents on the basis of the facts of the individual case, as long as it does not cause undue hardship to the other persons in interest. In determining the basis for special apportionment, consideration is to be given to such factors as the amount of VA benefits payable, other income and resources of the Veteran and those dependents on whose behalf the apportionment is claimed, and the special needs of the Veteran, his or her dependents, and the apportionment claimants. The amount apportioned should generally be consistent with the total number of dependents involved. Ordinarily, apportionment of more than 50 percent of the Veteran's benefits would constitute undue hardship on him or her while apportionment of less than 20 percent of his or her benefits would not provide a reasonable amount for any apportionee. Preliminarily, the Board notes that the appellant has submitted additional evidence in the form of financial information and a private letter from her physician, V.B., M.D., after the issuance of the July 2010 statement of the case (SOC). The relevant records focus on the Veteran's yearly income and the effect of the appellant's physical disabilities on her ability to work, and the appellant has not specifically stated that she was waiving consideration of the additional evidence by the agency of original jurisdiction (AOJ). Pursuant to 38 C.F.R. § 20.1304(c) (2012), any pertinent evidence submitted by an appellant or the representative must be referred to the AOJ for initial review, unless this procedural right is waived by the appellant, or unless the Board determines the benefit sought can be allowed on appeal without such a referral. Therefore, the Board may not properly consider this evidence or issue a decision at this time, and must remand the case to allow the AOJ opportunity to review this evidence and readjudicate the appellant's claim. See 38 C.F.R. § 19.31 (2012). In the most recent VA Form 21-0788 (which is dated on December 15, 2009 and date stamped as received in January 2010), the appellant provided the most up-to-date financial summary of her income and expenses, and specifically indicated that she was receiving Social Security Administration (SSA) benefits in the amount of $721 per month. With respect to her expenses, the appellant provided her monthly rental, food, utility, and telephone expenses. Specifically, she reported to pay a monthly rental amount of $700, and further noted that her monthly expenses with respect to how much she spends on food, utilities, telephone and clothing were $500, $400, $80, and $600, respectively. She also reported school expenses which approximated to about $100 a month, and other additional (miscellaneous) expenses in the amount of $60 a month. As such, the appellant's total monthly expenses come out to $2,440. A December 2009 letter from SSA demonstrates that the appellant does in fact receive regular monthly social security payments in the amount of $721. A June 2006 Order from the Division of Child Support Enforcement reflects that the Veteran was ordered to pay $65 per month to the appellant in past-due child support benefits. However, it is unclear whether the Veteran complied with this order. Based on the records provided and the above-referenced VA Form 21-0788, it does not appear that the appellant receives any additional income from other sources. An August 2010 letter written by the appellant's private physician, Dr. V.B., indicates that the appellant is partially blind in both eyes, suffers from dangerously high blood pressure, and has experienced a brain aneurysm in the last five years. According to Dr. V.B., the appellant was unable to perform any physical duties required for employment as a result of her physical condition. As for the Veteran's monthly income, the record reflects that the Veteran currently receives $2,924 in VA compensation benefits, from which $150 is currently apportioned for the appellant. Therefore, the actual monetary amount allotted to the Veteran is $2,774. In addition, an SSA Inquiry Data sheet reflects that, as of December 2008, the Veteran receives $1028 a month in SSA benefits. Based on the evidence of record as it stands, the Veteran has a total monthly income of $3,802 per month. Separate SOCs were provided to both the appellant and the Veteran in July 2010. In the SOC addressed to the Veteran, it was noted that the Veteran did not need to do anything at this time, and would be notified and given the opportunity to respond and request a hearing if an appeal was filed. A claim for an apportionment is a "contested claim" subject to special procedural requirements. For instance, if the apportionment claim is simultaneously contested, all interested parties are to be specifically notified of any action taken by the AOJ, of the right and time limit for initiating an appeal, and of the right to present testimony at a hearing and to be represented. 38 U.S.C.A. § 7105A(a) (West 2002); 38 C.F.R. § 19.100 (2012). Upon the filing of a NOD all interested parties are to be furnished with a copy of the SOC. 38 U.S.C.A. § 7105A(b); 38 C.F.R. § 19.101 (2012). When a substantive appeal is filed, its content is to be furnished to the other contesting parties to the extent that it contains information that could directly affect the payment or potential payment of the benefit that is the subject of the contested claim. 38 U.S.C.A. § 7105A(b); 38 C.F.R. § 19.102 (2012). While the Veteran is aware that a certain share of his VA benefits was apportioned for his spouse and child, and is now being apportioned for his spouse, a review of the claims file is absent any notification letter alerting the Veteran that the appellant's appeal for increased apportionment of his VA benefits had been perfected. As such, this claim should be remanded in order for the RO to provide the Veteran with the necessary notification letter which includes the content of the appellant's substantive appeal. The Veteran should also be given an opportunity to respond to this notification letter and/or request a hearing in this matter. Furthermore, in order to develop a more complete financial picture with regard to the Veteran and appellant's finances, additional information as to the financial status of the parties involved should be requested on remand. As the Board is remanding the claim to provide the Veteran with appropriate notification, the Board takes this opportunity to request that the Veteran and the appellant complete new VA Form 21-0788s to determine the financial status of each party. In addition, both parties should be asked to submit additional financial records to help corroborate their reported monthly income and expenses, to include any bank records, court records, and bills. Accordingly, the case is REMANDED for the following actions: 1. Notify the Veteran of the contents of the appellant's substantive appeal to the extent that it contains information which could directly affect the payment or potential payment of his VA compensations benefits. Also, notify the Veteran of his right to testify at a personal hearing if he so desires. An appropriate period of time should be allowed for response from the Veteran. 2. Then, furnish VA Forms 21-0788 (Information Regarding Apportionment of Beneficiary's Award) to both the Veteran and appellant. The appellant should be asked to complete this form for the present period (if different from her December 2009 VA Form 21-0788) and the Veteran should be asked to complete this form for the period from December 2009 to the present, indicating his income and expenses. In particular, request that both the Veteran and the appellant, if possible, include with this form copies of supporting documents for all relevant periods, including any copies of pertinent bills, invoices, bank records, and court statements/orders, as well as lease, loan, or mortgage agreements, to corroborate their assertions concerning their monthly income and expenses. Also, inquire of each party whether he or she has shared housing expenses with any other individual during the pertinent periods in questions, and, if so, whether such individual(s) pay(s) all or any portion of the expenses shown on the party's updated form. 3. After completing the above, readjudicate the issue on appeal. If either party is not satisfied with the outcome of the apportionment issue, provide the appellant and the Veteran with a supplemental statement of the case (SSOC). The SSOC must include consideration of any additional evidence associated with the claims file since the July 2010 SOC. In processing the claim, follow the "contested claim" procedures. An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant and the Veteran both have the right to submit additional evidence and argument on the matter 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2012).