Citation Nr: 1633271	
Decision Date: 08/22/16    Archive Date: 08/26/16

DOCKET NO.  14-08 668	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to apportionment of the Veteran's disability compensation payments for a minor child in the custody of the Appellant.


REPRESENTATION

Appellant represented by:	Unrepresented
Veteran represented by:	Chisholm, Chisholm, & Kilpatrick, Attorneys at Law


ATTORNEY FOR THE BOARD

Mary E. Rude, Associate Counsel


INTRODUCTION

The Veteran had active military service from February 2001 to March 2003.  The Appellant is the mother and custodian of the Veteran's minor child.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied the Appellant's claim for an apportioned share of the Veteran's service-connected disability compensation benefits.  The RO notified both the Veteran and the Appellant of this decision.

In August 2014, the Board remanded this issue for further development.  The Board notes that a separate August 2014 remand addressed issues regarding the evaluation of service-connected disabilities of the Veteran.  These issues were also returned to the Board and are addressed in a separate Board decision.

The Board has reviewed the Veteran's electronic claims file in conjunction with this adjudication, via the Veterans Benefits Management System (VBMS) and Virtual VA.  They contain additional documentation and evidence relevant to the current appeal.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

This issue was remanded in August 2014 in order to afford the Appellant a hearing with an Indianapolis RO hearing official.  There is no indication in the record that such hearing has been scheduled.  See 38 C.F.R. § 3.103 (2015).  The Board is obligated by law to ensure that the AOJ complies with Board remand directives, and errs as a matter of law when it fails to ensure compliance.  Stegall v. West, 11 Vet. App. 268 (1998).  Accordingly, the issue must be again remanded in order to schedule a hearing.

Accordingly, the case is REMANDED for the following action:

1.  Schedule a hearing in compliance with contested claims procedures.

2.  After pursuing any additional development deemed appropriate, the issue on appeal should be readjudicated.  The Appellant, the Veteran, and the Veteran's attorney should be provided a supplemental statement of the case and given an opportunity to respond.  Thereafter, the case should be returned to the Board, if 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).



_________________________________________________
K. A. KENNERLY
Acting 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) (2015).