Citation Nr: 1315349 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 07-28 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an apportionment of the Veteran's disability compensation benefits from the Department of Veterans Affairs (VA) on behalf of a minor daughter. ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1974 to September 1977. The appellant is the Veteran's former spouse who brought this claim on behalf of the Veteran's then-minor child. The record shows that the appeal was perfected prior to the child reaching the age of majority, but she has since turned 18 years old. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2006 decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied an apportionment of the Veteran's VA benefits to his daughter, M.E. In March 2009, the Board remanded the case for further development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant and the Veteran if further action is required. REMAND A veteran's benefits may be apportioned if the veteran is not residing with his or her spouse or his or her children, and a claim for apportionment is filed for or on behalf of the spouse or children. 38 C.F.R. § 3.452(a) (2012). VA regulations provide for two types of apportionments. A general apportionment may be awarded if the veteran is not residing with his spouse or children, and the veteran is not reasonably discharging his responsibility for the spouse's or children's support. 38 C.F.R. § 3.450 (2012). For a general apportionment, it is not necessary for the claimant to establish the existence of financial hardship. See Hall v. Brown, 5 Vet. App. 294 (1993). Where hardship is shown to exist, a special apportionment may be awarded between the veteran and his dependents on the basis of the facts of the individual case. 38 C.F.R. § 3.451. 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 in whose behalf the apportionment is claimed, and the special needs of the veteran, his dependents and the apportionment claimants. Id. The term "child" is specifically defined. For purposes of determining eligibility as a claimant under Title 38, a child must be unmarried and must be either under the age of 18, have become permanently incapable of self-support before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4)(A)(ii) (West 2002); 38 C.F.R. §§ 3.57(a)(1), 3.356 (2012). Additional development must be undertaken before the Board may properly decide this claim. The claimant is seeking benefits on behalf of her daughter - the Veteran's child with the claimant - who was born on February [redacted], 1990. The claimant filed the claim for apportionment on March 10, 2006. Given VA's definition of "child," an apportionment may be appropriate beyond the date of the daughter's 18th birthday if it is shown that she is pursuing a course of instruction at an approved educational institution. On remand, it must be determined whether M.E. was enrolled in such a program between the dates of her 18th and 23rd birthdays. Secondly, VA has determined that the Veteran is not competent to handle the disbursement of funds on his behalf, and a fiduciary has been appointed. That fiduciary has provided information regarding the Veteran's income and expenses for the period from October 2007 through August 2008, but little information from before or after this period has been obtained. Such detailed financial records must be obtained before the Board can decide this claim. On remand, VA must be mindful to follow contested claim procedures. See 38 C.F.R. §§ 19.100-19.102, 20.500-20.504, and 20.713. Accordingly, the case is REMANDED for the following actions: 1. Contact the claimant to determine whether the dependent child status of M.E. changed over the course of the appeal, and for what periods she was eligible for the benefit sought. Specifically, determine whether M.E. pursued a course of instruction at an approved educational institution between February [redacted], 2008 and February [redacted], 2013. 2. Contact the Veteran's fiduciary and request detailed financial information for the periods from March 2006 to October 2007 and from September 2008 to February 2013. The fiduciary must also indicate whether the Veteran has paid child support to his former spouse, whether the Veteran has paid any medical expenses of M.E., and whether the Veteran's home has been foreclosed. 3. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the appellant and the Veteran an appropriate period of time to respond. The case should then be returned to the Board for further appellate review. The appellant and the Veteran 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 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. 2012). _________________________________________________ RONALD W. SCHOLZ 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).