Citation Nr: 1338849 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 05-06 806A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to an apportionment of the Veteran's compensation award for the benefit of his dependent children. ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from June 1986 to May 1995. The appellant in this matter is the Veteran's former wife. This matter comes before the Board of Veterans' Appeals (Board) from a December 2003 RO decision. Neither the appellant nor the Veteran is represented in this matter. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action on her part is required. VA will also notify the Veteran when further action on his part is required. REMAND Upon review, the Board finds that further evidentiary and procedural development is required prior to appellate review of this matter. The appellant initially filed a claim for apportionment on behalf of her two minor children in August 2003. At that time, she asserted that the Veteran was not paying his court-ordered child support obligation, and she provided Court documentation which supports her assertion. The RO denied the claim for apportionment in December 2003 on the basis that the appellant had not demonstrated financial need for the apportionment. The appellant contends that the Veteran's failure to pay child support has created a financial hardship for their children. In this regard, although the appellant has presented copies of Court records showing that the Veteran indeed failed to pay the great majority of his child support obligations during the relevant period since her August 2003 claim, these records only reflect the period of time through March 2005. Therefore, further information in this regard is necessary. Since the 2003 decision, however, the Veteran's financial situation has changed significantly, as he was awarded increased VA compensation benefits, at the 80 percent level, effective in September 2005. Effective in November 2007, he was awarded a total disability rating based upon individual unemployability. The Board is of the opinion that the appellant's claim for apportionment should be revisited in light of the Veteran's changed financial circumstances. The appellant's financial situation should likewise be updated upon remand. There are several additional matters which must be addressed. According to the birth certificates on file, the Veteran and the appellant had two children together, a daughter, who was born in December 1991, and a son, who was born in November 1995. The appellant has requested apportionment benefits for both children. However, for unclear reasons, the RO has only been paying dependent benefits for the Veteran's daughter, and has never paid dependent benefits for his son. Likewise, the Statement of the Case regarding the apportionment only pertains to their daughter. In support of a request to have a benefit check reissued based upon nonreceipt of the original check, the Veteran claimed in January 2005 that "a daughter" was living with him, and that he needed the money immediately to pay his utility bills. The appellant has disputed this claim, asserting that the Veteran is not involved in his children's lives, and that both children have lived with her throughout the time period at issue. In support of this claim, she has submitted school records, showing that the children attended school in the state where she lives, rather than the state where the Veteran lives. The Veteran has not made any attempt to prove that his daughter was living with him; however, upon remand, he should be given the opportunity to do so. Accordingly, the case is REMANDED for the following action: 1. Ask the appellant to provide a full accounting of any child support payments received from the Veteran from March 2005 through the present, to include any and all available documentation of any received payment such as cancelled checks, etc. 2. Ask the Doncaster County Family Court in South Carolina, for any information regarding child support payments from the Veteran from March 2005 to the present. If any release of information signature is required, the appellant should be requested to provide the appropriate release. 3. Furnish the appellant and the Veteran each with copies of the VA Form 21-0788, Information Regarding Apportionment of Beneficiary's Award, and request that the forms be completed showing updated monthly income and expenses for each year since 2004. The Veteran should be specifically invited to provide any documentary evidence of his support for his children, to include support for his January 2005 assertion that "a daughter" was living with him. 4. After the development requested above has been completed to the extent possible, the RO should again review the record for the appropriate time periods at issue, beginning in August 2003, noting the Veteran's increased income in 2005 and 2007, and recognizing that the children reached the age of eighteen years in 2009 and 2013. Any further evidentiary development which may become apparent based upon the development accomplished in response to the above requests, should be completed at this time. A recalculation of the Veteran's dependency allowance over the years may be in order to recognize the Veteran's son, as well. If the decision remains adverse to the appellant, she and the Veteran must each be furnished with a supplemental statement of the case, and be given an opportunity to submit written or other argument in response before the case is returned to the Board for further appellate consideration. Both 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 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). _________________________________________________ M. L. Kane 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).