Citation Nr: 1321408 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 11-03 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to apportionment benefits in excess of $150 per month prior to December 1, 2010, and in excess of $300 per month thereafter. 2. Entitlement to an effective date earlier than August 1, 2009 for the grant of apportionment benefits. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from September 1976 to September 1980. The appellant is the Veteran's estranged spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2010 decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which granted an apportionment of the Veteran's VA benefits to his estranged spouse. The appellant testified before a Decision Review Officer at the Milwaukee RO in November 2010. A transcript of the hearing is in the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND For two reasons, this claim must be remanded. First, a claim for an apportionment is a "contested claim" and is subject to special procedural regulations as set forth in 38 C.F.R. §§ 19.100, 19.101, 19.102; see also 38 C.F.R. §§ 20.500-20.504, 20.713. Under applicable criteria, all interested parties will be specifically notified of the action taken by the agency of original jurisdiction in a simultaneously contested claim and of the right and time limit for initiating an appeal, as well as hearing and representation rights. 38 C.F.R. § 19.100. When a substantive appeal is filed in a simultaneously contested claim, the content of the substantive appeal will be furnished to the other contesting parties to the extent that it contains information which could directly affect the payment or potential payment of the benefit which is the subject of the contested claim. 38 C.F.R. § 19.102. If a hearing is scheduled for any party to a simultaneously contested claim, the other contesting claimants and their representatives, if any, will be notified and afforded an opportunity to be present. The appellant will be allowed to present opening testimony and argument. Thereafter, any contesting party who wishes to do so may present testimony and argument. The appellant will then be allowed an opportunity to present testimony and argument in rebuttal. Cross-examination will not be allowed. 38 C.F.R. § 20.713. VA has not fulfilled its obligations under the procedures relating to contested claims. See VA Adjudication Manual, M21-1MR, Part III, Subpart vi, Chapter 6. Specifically, it is not apparent from the claim file that VA provided the Veteran with a copy of the contents of the appellant's December 2010 substantive appeal. The Veteran was also not provided notice of the appellant's Decision Review Officer hearing or afforded an opportunity to be present at the hearing. These deficiencies must be corrected on remand. In particular, in addition to providing the Veteran with a summary of the appellant's substantive appeal, he must be provided a copy of the November 2010 Decision Review Officer hearing transcript, and be afforded an opportunity to submit written argument and/or appear at a hearing, if requested. Second, in a February 2011 report of income and expenses, the Veteran listed a $300 expense for "lawyer fees for divorce action." If the Veteran and the appellant are now divorced, she is no longer legally entitled to an apportionment of his disability compensation. See 38 C.F.R. §§ 3.450, 3.451. As it is not clear whether the Veteran and the appellant remain married and estranged, the status of their marriage must be determined on remand. Accordingly, the case is REMANDED for the following actions: 1. Review the claim file and ensure that all contested claim procedures have been followed. Furnish the Veteran with a copy (or the contents) of the appellant's December 2010 substantive appeal, and a copy of the November 2010 Decision Review Officer hearing transcript. The Veteran must be afforded an opportunity to respond with additional evidence or argument. He should also be asked specifically whether he would like to have a personal hearing regarding these claims. If the Veteran elects to testify in a hearing and/or submit written rebuttal to the appellant's testimony, the appellant must be notified of any hearing scheduled (and given an opportunity appear) and/or be provided a copy of any written rebuttal submitted by the Veteran (and given an opportunity to respond). 2. Determine whether the Veteran and the appellant remain married. 3. Review the claim 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 either benefit remains denied, issue a supplemental statement of the case to all parties and their representatives and provide an appropriate opportunity to respond. The case is to then be returned to the Board for further appellate review. The appellant 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 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).