Citation Nr: 1442011	
Decision Date: 09/19/14    Archive Date: 09/30/14

DOCKET NO.  08-17 816	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to an effective date earlier than June 1, 2005, for the apportionment of the Veteran's VA disability compensation benefits.

2. The propriety of the discontinuation of the appellant's apportionment of the Veteran's VA disability compensation benefits, effective November 1, 2006.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

J. Rutkin, Counsel


INTRODUCTION

The appellant is the former spouse of the Veteran, who served on active duty from January 1976 to March 1977. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from July 2006, May 2008, and March 2009 decisional letters of the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO).  The July 2006 decisional letter determined that the appellant was entitled to an apportionment of the Veteran's VA disability compensation benefits, effective June 1, 2005.  The May 2008 decisional letter determined that the appellant was no longer entitled to an apportionment of the Veteran's VA disability compensation benefits, effective August 18, 2007.  A March 2009 decisional letter readjudicated the claim after additional evidence was received and determined that the appellant's entitlement to apportionment benefits terminated on November 1, 2006.  

In April 2011, a Travel Board hearing was held before the undersigned.  A transcript of the hearing is associated with the Veteran's claims file.

The Board remanded this case in June 2012 for further development.  It now returns for appellate review. 

The Veteran has submitted statements dated in May 2014 and June 2014 asserting that he is entitled to reimbursement of apportionment payments made to the appellant subsequent to their divorce.  This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2013).


FINDINGS OF FACT

1.  The Veteran's VA disability compensation payments were reduced effective June 1, 2005 based on incarceration for a felony, for which he was convicted on March [redacted], 2005; the amount withheld was apportioned to the appellant effective June 1, 2005. 

2.  The Veteran and the appellant were legally divorced effective October [redacted], 2006.


CONCLUSIONS OF LAW

1.  Entitlement to an effective date earlier than June 1, 2005 for the apportionment of the Veteran's benefits to the appellant is not established.  38 U.S.C.A. § 5313; 38 C.F.R. § 3.665 (2013). 

2.  The discontinuation of the apportionment of the Veteran's benefits to the appellant effective November 1, 2006 was proper.  38 U.S.C.A. §§ 501, 5112, 5313 (West 2002); 38 C.F.R. §§ 3.105, 3.501, 3.665; VAOPGCPREC 74-90 (July 1990).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist and Procedural Due Process

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) sets forth VA's duties to notify and assist in developing claims for benefits.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013).

This appeal, however, concerns a benefit provided under chapter 53 of title 38, United States Code.  The notice and assistance provisions of the VCAA, as promulgated under 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159, do not apply to claims for benefits provided under chapters other than Chapter 51, including claims regarding the manner in which benefits are paid, such as in apportionment cases.  Sims v. Nicholson, 19 Vet. App. 453, 456 (2006).  Thus, the VCAA does not apply to the apportionment issues addressed in this decision.  See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006).

Special procedural requirements govern simultaneously contested claims, including those involving apportionment of benefits as in the present case.  See 38 C.F.R. §§ 19.100, 19.101, and 19.102 (2013).  The applicable contested claims procedures have been followed.  Specifically, the RO has provided both parties (the appellant and the Veteran) with appropriate notices and determinations related to the contested claims, and advised both parties of the applicable law and regulations.  See id.  The appellant was also notified in March 2006 and July 2006 letters that the apportionment would stop upon the Veteran's release from incarceration, and that she could submit a new claim for apportionment if she and the Veteran did not live together when he was released from incarceration, in accordance with 38 C.F.R. § 3.665(h).  These issues are moot, however, as they divorced prior to the Veteran's release.  She was further notified in the July 2006 letter that she must immediately inform VA of any change in her marital status.  

The Veteran was provided a copy of the May 2008 statement of the case (SOC) denying an earlier effective date of apportionment (as indicated on the cover letter to the SOC).  Further, copies of the transcript of the appellant's April 2011 hearing testimony and her June 2008 and February 2009 substantive appeals (VA Form 9) were forwarded to the Veteran in June 2012, and he has had an adequate amount of time to submit argument or evidence in response.  He has not submitted any argument, information, or evidence pertinent to resolution of the issues on appeal since that letter was sent.  He was also provided an opportunity to testify at a hearing before the Board in a June 2012 letter, but did not submit such a request.  

As well, letters dated in May 2008 and September 2008 were sent to the appellant notifying her of the proposal to stop apportionment payments effective November 1, 2006 due to the divorce between herself and the Veteran, and a March 2009 decision effectuated the discontinuance of apportionment payments.  Thus, the appellant was provided notice of the proposed discontinuance more than 60 days prior to the date the RO took action in March 2009.  See 38 C.F.R. § 3.105(h) (2013).  The May 2008 and September 2008 letters also notified the appellant of her right to a pre-determination hearing, but she did not request one within 30 days (or indeed within 60 days) from the date of either notice.  These letters thus satisfy the procedural requirements governing the discontinuance of benefits based on a change in marital status.  See id.

Finally, all known and available records relevant to the issues on appeal have been obtained and associated with the claims file. 

Because no decision in this case is adverse to the Veteran, no prejudice exists concerning his interests in these matters.  Moreover, because the resolution of these claims is dictated by the law based on facts that are not in dispute, further notice or assistance would not affect their outcome, and thus no prejudicial error exists.  See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009); see also Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Cf. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). 

The Board remanded these claims in June 2012 with instructions to send the Veteran copies of the appellant's VA Form 9's and the April 2011 hearing transcript, and to provide him an opportunity to request a hearing.  These directives have been accomplished, as shown in the above discussion.  Accordingly, there has been substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

The Board also finds that no prejudicial error exists concerning the hearing officer's duties under 38 C.F.R. § 3.103(c)(2) (2013).  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).  At the April 2011 Board hearing, the appellant had an opportunity to provide testimony in support of these claims, facilitated by questioning from the undersigned.  The appellant did not raise any new issues at the hearing, and there is no indication that any outstanding evidence exists that might provide additional support for the claims.  Moreover, because the resolution of these claims turns solely on application of law to facts that are not in dispute, any error in discharging the hearing officer's duties was harmless, as it did not affect the outcome of these claims.  Accordingly, the "clarity and completeness of the hearing record [is] intact" and no prejudicial error has been committed regarding the hearing officer's duties under subsection 3.103(c)(2).  See Bryant, 23 Vet. App. at 498 (holding, in pertinent part, that the rule of prejudicial error applies in assessing any deficiency with respect to the hearing officer's duties under section 3.103(c)); see also Sanders, 556 U.S. at 407, 410.

In light of the above, all procedural requirements applicable to these claims have been satisfied, and no prejudice exists.  Accordingly, the Board will proceed with a decision on the merits. 


II.  Analysis

A.  Earlier Effective Date for Apportionment of Benefits

The appellant contends that an effective date of June 2004 is warranted for the apportionment of the Veteran's benefits based on the fact that her claim was submitted in May 2004 and the Veteran had been incarcerated since 2003.  For the following reasons, entitlement to an effective date earlier than June 1, 2005 for the apportionment of benefits is not established. 

As relevant to this claim, VA law provides that a veteran serving a period of incarceration for conviction of a felony committed after October 7, 1980 who is in a Federal, State, or local penal institution in excess of 60 days for conviction of that felony will have his or her benefits reduced effective the 61st day of incarceration.  38 U.S.C.A. § 5313; 38 C.F.R. § 3.665.  The 61st day is calculated from the date of conviction for the felony, rather than from the date of initial incarceration.  See id.; see also Adjudication Procedure Manual, M21-1MR, III.v.8.B.5.f.  All or part of the compensation not paid to an incarcerated veteran may be apportioned to the veteran's spouse, child or children and dependent parents on the basis of individual need.  38 C.F.R. § 3.665(e).  VA regulation further provides, in relevant part, that the effective date of such an apportionment is the same as the effective date of the reduction of payments made to the incarcerated person.  § 3.665(f).  

The Veteran was convicted on March [redacted], 2005 of the felony for which he was incarcerated, as reflected in correspondence from the Alabama Department of Corrections.  The record shows that his benefits were reduced effective June 1, 2005, the first day of the month following the 61-day period of incarceration from the date of conviction.  As apportionment of the Veteran's benefits cannot be effective prior to the date that they were reduced, entitlement to an effective date prior to June 1, 2005 for the apportionment of his benefits to the appellant is not available as a matter of law.
The Board has carefully considered the appellant's contentions, and sincerely empathizes with the hardships she has related, and her stated reasons for requesting an earlier effective date.  However, the Board is bound by the law, and this decision is dictated by the relevant statute and regulations.  The Board is without authority to grant benefits on any other basis.  See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994); see also Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992).  

In sum, entitlement to an effective date prior to June 1, 2005 for the apportionment of the Veteran's compensation benefits to the appellant is denied.  See Elias v. Brown, 10 Vet. App. 259, 263 (1997) (holding that the benefit-of-the-doubt rule under 38 U.S.C.A. §5107 (West 2002) does not apply to apportionment cases); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that the benefit-of-the-doubt rule does not apply where the law, rather than the evidence, is dispositive of a claim).  

B.  Discontinuance of Apportionment Effective November 1, 2006

The Veteran and the appellant were legally divorced effective October [redacted], 2006 based on a divorce decree issued by the Circuit Court of Tallapoosa County, Alabama at Dadeville, a copy of which is of record.  The validity of a divorce decree, regular on its face, will be questioned by VA only when challenged by a party to the decree or a person whose interest in a claim for VA benefits would be affected by its validity.  38 C.F.R. § 3.206 (2013).  The appellant has not submitted such a challenge.  She merely stated that she had not been aware of the divorce, which does not by itself put into question its validity, especially as the decree itself states that she did not appear for the divorce proceedings.  Accordingly, as the decree seems otherwise regular on its face, the Board will assume its validity.  See id.

VA law provides, in pertinent part, that the effective date of discontinuance of benefits, including apportionments, based on divorce on or after October 1, 1982 is the last day of the month in which the divorce occurred.  38 U.S.C.A. § 5112(b)(2); 38 C.F.R. § 3.501(d)(2); VAOPGCPREC 74-90 (holding, in pertinent part, that section 3.501(d) applies to discontinuances of apportionment based on divorce).  

Thus, because the divorce occurred in October 2006, the discontinuance of the appellant's apportionment effective November 1, 2006, the first day of the month following the divorce, was proper.  See id.  As the divorce occurred prior to the Veteran's release from incarceration in August 2007, a later effective date based on his release is not available, as the appellant was no longer entitled to an apportionment after the effective date of the discontinuance.  See 38 C.F.R. § 3.665 (providing that apportionments based on incarceration of a beneficiary are subject to discontinuance immediately upon the incarcerated person's release or participation in a work release or halfway house program).   


ORDER

Entitlement to an effective date earlier than June 1, 2005, for the apportionment of the Veteran's VA disability compensation benefits is denied. 

The discontinuation of the appellant's apportionment of the Veteran's VA disability compensation benefits effective November 1, 2006 was proper; the appeal is denied. 



____________________________________________
KRISTI L. GUNN
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs