Citation Nr: 1310996 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 11-01 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an apportionment of the Veteran's compensation benefits on behalf of the Veteran's minor child, M.P. REPRESENTATION Appellant is unrepresented. Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from May 2000 to May 2004. The appellant is the mother and custodian of the Veteran's minor child, M.P. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 determination issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the appellant's claim for apportionment. This is a contested claim. The appellant testified at a Board hearing before the undersigned Veterans Law Judge in July 2011. A copy of the hearing transcript has been associated with the claims file. At the Board hearing, the appellant submitted additional evidence along with a waiver of RO consideration of such evidence. See 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. It appears that the Veteran also requested a Board hearing. However, in January 2011, he withdrew his request. The Board further notes that his representative was not provided with an opportunity to submit an Informal Hearing Presentation prior to the Board's review of the case. However, the Board finds no prejudice to the Veteran in proceeding with the issuance of this Remand because, following the completion of the requested development, his representative will be given an opportunity to submit additional argument prior to the case's return to the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant and Veteran if further action is required. REMAND After preliminary review of the claims file, the Board believes clarification and further development is necessary prior to appellate review. By way of background, the evidence of record shows that M.P. was born in February 2001 and is, thus, considered a minor child for VA purposes. Court documents submitted by the Veteran also show that the appellant has sole legal and physical custody of M.P. Moreover, the Veteran has been ordered to pay child support for M.P. While the Veteran indicated that he was paying such support, the appellant has submitted evidence showing continuous nonpayment. Moreover, the Veteran has not submitted any evidence besides the initial Court Order demonstrating actual payment of child support. Moreover, a June 2009 letter shows that the Veteran is receiving additional VA compensation benefits for M.P. as a child dependent, effective June 4, 2007. While the record clearly documents that the Veteran has been found unemployable for VA purposes and is receiving compensation benefits based on being unemployable due to his service-connected disabilities, the Board observes that the Veteran has indicated that he has expenses for repayment of school loans, supporting his parents, rent and cell phone bills, he has not submitted any actual accounting of his monthly expenses. Further, the appellant has submitted differing information concerning her income throughout the course of the appeal. For instance, in an October 2008 statement, she indicated that her income was $997.00 per month in benefits from the Michigan Department of Human Services. However, her expenses totaled $2,820.00. Nevertheless, in a March 2010 income statement, she indicated that she received $1200.00 in wages and $167.00 in Social Security Administration (SSA) death benefits for another child. She made no mention as to whether she was still receiving any benefits from the State of Michigan. Further, her expenses now totaled approximately $3865.00. Then, at the Board hearing, she indicated that her only income was food stamps totaling $600 per month and the $167 in SSA death benefits for another child. While she testified that she owned her home, she did not provide any other information concerning expenses. Given that the Veteran has not submitted detailed information concerning his expenses and that the appellant has provided differing information concerning her income and expenses during the course of the appeal, the Board finds that the agency of original jurisdiction (AOJ) should request that both of them provide their monthly income and expenses. Moreover, the Veteran should be invited to submit any evidence documenting payment of child support. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should contact the Veteran and the appellant and request current information regarding monthly income and expenses. The AOJ should also request information from the Veteran documenting any payment of child support. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the AOJ should then review the pertinent record and determine if an apportionment is warranted for any period of time contemplated by the appeal. The AOJ should also ensure that there has been compliance with contested claims procedures codified at 38 U.S.C.A. § 7105A(b) and 38 C.F.R. §§ 19.100 through 19.102 and 20.500 through 20.504. If the benefit remains denied, the AOJ should issue a supplemental statement of the case to both the appellant and the Veteran. An appropriate period of time should be allowed for response. The appellant and Veteran has the right to submit additional evidence and argument on the 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 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. 2012). _________________________________________________ A. JAEGER 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) (2012).