Citation Nr: 1511482 Decision Date: 03/18/15 Archive Date: 03/27/15 DOCKET NO. 12-20 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to reduction of the $250.00 monthly apportionment of the Veteran's disability compensation payment. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from August 1992 to June 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 decision by the Phoenix, Arizona, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted an apportionment of the Veteran's disability compensation in the amount of $250.00 on behalf of his estranged wife and child. The Veteran was notified of the decision in December 2011 and he appealed the determination. The Veteran has relocated, and the Detroit RO has assumed jurisdiction over the claim. The Veteran requested, and was scheduled for, a hearing before a Veterans Law Judge in May 2014; he failed to report for the hearing, without explanation or any request to reschedule. The hearing request is therefore considered withdrawn. 38 C.F.R. § 20.704(d). The Board has reviewed the Veteran's physical claims file and the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A contested claim is one where a favorable decision on one claim requires denial of another claim or payment of a lesser benefit, and one claimant may dispute the allowance or payment to the other party. Apportionment claims are one form of contested claim. Special rules are applicable to contested claims. Upon the filing of a notice of disagreement (NOD) in a simultaneously contested claim, all interested parties and their representatives must be furnished a copy of the statement of the case (SOC). 38 C.F.R. § 19.101. When a substantive appeal is filed in a simultaneously contested claim, the content of the substantive appeal must be furnished to the other contesting parties to the extent that it contains information which could directly affect the payment or potential payment of benefit which is subject of the contested claim. 38 U.S.C.A. § 7105A; 38 C.F.R. § 19.102. Here, the Veteran filed a timely December 2011 NOD to the apportionment in favor of his wife and child. While the RO issued an SOC in June 2012, there is no indication that such was ever supplied to the Veteran's wife. Similarly, when the Veteran perfected his appeal by filing a July 2012 substantive appeal, no information was sent to her. She was also apparently not notified of the scheduled Board hearing and her right to appear at such. She appears to be unaware the Veteran is contesting her apportionment award. Remand is necessary for compliance with the due process requirements applicable to contested claims. Further, the Board notes that the most recent statement of financial status from the Veteran was received in December 2011. He has reported several changes in his financial situation since that time, to include the termination of Social Security Administration (SSA) disability benefits in March 2012 and the creation of a large overpayment debt based on Social Security benefits. On remand, updated information is required, as well as evidence related to the termination of SSA benefits and any related debt. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran's spouse with a copy of the June 2012 SOC as well as any content of the substantive appeal which is relevant to the subject of the contested claim. 2. Provide the Veteran with an appropriate VA financial report form and request that the Veteran complete the form to include monthly income from all sources, a list and value of all property, monthly expenses for the Veteran and any dependents living with him, and a statement of the average monthly amount, if any, provided to his wife and child who do not live with him. 3. Contact SSA and request complete records associated with the termination of disability benefits in March 2012, the creation of an overpayment debt at that time, and any waiver or settlement applications in connection therewith. 4. Review the claims file to ensure that all of the foregoing requested development is 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 to the Veteran and his representative, as well as his spouse and her representative, and provide the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has 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 2014). _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).