Citation Nr: 1702012 Decision Date: 01/26/17 Archive Date: 02/09/17 DOCKET NO. 11-34 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to recognition as the Veteran's spouse for the purpose of receiving apportionment benefits during the Veteran's period of incarceration. 2. Entitlement to an apportionment of the Veteran's benefits on behalf of the Appellant during the Veteran's period of incarceration. 3. Entitlement to an apportionment of the Veteran's benefits on behalf of the Appellant's children during the Veteran's period of incarceration. REPRESENTATION Appellant represented by: Disabled American Veterans Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Fagan, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to October 1973. The appellant seeks recognition as the Veteran's spouse for apportionment purposes. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2011 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The issue of entitlement to an apportionment is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran and his first wife, M.F., were legally divorced in March 1982. 2. The Veteran entered into marriage with his second wife, N.N., in December 1981, prior to his divorce from M.F. in March 1982. 3. The Veteran's marriage to N.N. was void under Alaska law and was therefore not an impediment to the Veteran's subsequent marriage to the appellant in July 2001 in South Dakota. 4. The Veteran and the appellant, W.S., have a valid marriage for apportionment purposes. 5. The Veteran was incarcerated on July [redacted], 2010, for the conviction of a felony. He remained incarcerated until at least March [redacted], 2012. CONCLUSIONS OF LAW 1. The appellant is the legal spouse of the Veteran for purposes of apportionment of the Veteran's VA benefits during his period of incarceration. 38 U.S.C.A. § 5307 (West 2014); 38 C.F.R. §§ 3.1(j), 3.50, 3.452 (2016). 2. The criteria for an apportionment of the Veteran's compensation benefits on behalf of the appellant have been met. 38 U.S.C.A. § 5307 (West 2014); 38 C.F.R. §§ 3.57, 3.450, 3.451, 3.665 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal concerns whether the appellant may be considered an eligible recipient of a benefit provided under 38 U.S.C. Chapter 53, specifically an apportionment of the Veteran's VA benefits. The statutes governing VA notice and assistance in a claim for compensation and pension benefits do not apply to claims for benefits provided under 38 U.S.C. Chapter 53. See 38 U.S.C.A. §§ 5103, 5103A, 5307 (West 2014); 38 C.F.R. § 3.159 (2016); Sims v. Nicholson, 19 Vet. App. 453 (2006). Nevertheless, VA regulations impose special procedural requirements for simultaneously contested claims, including claims for apportionment. 38 U.S.C.A. § 7105A (b); 38 C.F.R. § 19.102. In this case, however, the claim for apportionment has not been contested, as the Veteran has repeatedly stated and reinforced his desire that the appellant receive an apportionment of his VA disability benefits during his period of incarceration. As such, the Board finds that any failure to follow all contested claims procedures in this case is harmless. Turning to the merits of the claim, a veteran's benefits may be apportioned if the veteran is not residing with his spouse or children, and a claim for apportionment is filed for or on behalf of the spouse or children. 38 C.F.R. § 3.452 (a). When a veteran is not residing with his or her spouse, all or any part of the compensation benefits payable may be apportioned as may be prescribed by the Secretary of VA. 38 U.S.C.A. § 5307 (c). However, the threshold question that must be addressed in any claim for VA benefits is whether the person seeking the benefit is a proper claimant for the benefit sought. If the appellant is not established as a proper claimant, the claim cannot proceed. The appellant has the burden to establish her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). The facts of this case show that the Veteran was married to his first wife, M.F., on December [redacted], 1971 in Rapid City, South Dakota. They were subsequently divorced on March 22, 1982, in Anchorage, Alaska. However, before the divorce from M.F. was finalized in March 1982, the Veteran entered into marriage with his second wife, N.N., on December 28, 1981, in Palmer, Alaska. He later separated from N.N., and the record is unclear as to whether they were legally divorced. The Veteran then married the appellant on July [redacted], 2001, on the Pine Ridge Indian Reservation in South Dakota. The appellant's claim for apportionment has been denied based on lack of evidence establishing that the Veteran and his second wife, N.N., were divorced. Absent a divorce from N.N., under South Dakota law where the appellant and the Veteran were married, the Veteran's July 2001 marriage to the appellant would be "null and void from the beginning..." See South Dakota Codified Law 25-1-8. However, in this case, the Board finds that evidence of a divorce from N.N. is not necessary, as the Veteran's December 1981 marriage to N.N. was prohibited and void under Alaska law. The relevant regulations pertaining to marriage in Alaska can be found in Chapter 5 (Alaska Marriage Code) of Title 25 of the Alaska Statutes (AS), which addresses Marital and Domestic Relations and provide as follows: AS 25.05.021 Prohibited marriages Marriage is prohibited and void if performed when: (1) either party to the proposed marriage has a husband or wife living; or (2) the parties to the proposed marriage are more closely related to each other than the fourth degree of consanguinity, whether of the whole or half blood, computed according to rules of the civil law. AS 25.05.051 Effect of existing former marriage If, during the lifetime of a husband or wife with whom a marriage is still in force, a person remarries and the parties to the subsequent marriage live together as husband and wife, and one of the parties to the subsequent marriage believes in good faith that the former husband or wife is dead or that the former marriage has been annulled or dissolved by a divorce or is without knowledge of the former marriage, then after the death or divorce of the other party to the former marriage, if they continue to live together as husband and wife in good faith on the part of one of them, they are legally married from the time of removal of the impediment, and the issue of the subsequent marriage are the legitimate issue of both parents, whether born before or after the removal of the impediment. In this case, under AS 25.05.021, the Veteran's marriage to N.N. in December 1981 was prohibited and void, as he was still legally married to M.F. at that time, and therefore had "a wife living." Moreover, despite a March 2012 regional counsel opinion to the contrary, the Board finds that AS 25.05.051 does not support a legal marriage to N.N. effective from the date of divorce from M.F. in March 1982. This is because the record does not show that they lived together as husband and wife following their marriage, or even lived in the same country for a significant period of time. In support of the foregoing conclusion, the Board first points to the June 1983 Report of Birth Abroad relating to a child that the Veteran had with N.N. The report lists the Veteran's current address to be in Wasilla, Alaska, while N.N.'s current address was in Tokyo, Japan. It further shows that the Veteran had only been in Japan for a period of 3 months since his birth in 1953, and N.N. spent at most 4 months in the United States following their marriage. The birth report also lists supporting documents to include an "affidavit of paternity," which would not be necessary if the Veteran and N.N. resided together and were "liv[ing] together as husband and wife." Indeed, the Veteran's signature appears nowhere on the June 1983 birth record. Thereafter, in August 1983, in relation to a claim for educational benefits, the Veteran again reported his current address in Alaska, but reported that his son was in the custody of his wife, N.N., in Japan. Parenthetically, the Board points out that all of the training and education programs for which the Veteran applied and in which he engaged were all in the United States. Also noteworthy is the fact that the Veteran attempted to add N.N. as a dependent and, in August 1986, his claim was denied because VA determined his marriage to N.N. was not valid. Interestingly, the Veteran did not challenge that determination. In any event, thereafter, in an April 1987 statement, the Veteran reported that he was living with his parents and not living with his wife and son. Similarly, in an August 1987 statement, he stated that he had a couple of marriages and is "currently [married] to a woman who lives in Japan." By March 1991, the Veteran reported he was separated from N.N., and later he reported a divorce. In essence, the evidence of record shows that the Veteran's marriage to N.N. in December 1981 was prohibited and void under Alaska law because the Veteran was not yet divorced from M.F. AS 25.05.021. Moreover, despite evidence of a divorce from M.F. in March 1982, because the evidence does not show that the Veteran and N.N. subsequently "live[d] together as husband and wife," the Board finds that their marriage was not made legal by the March 1982 divorce, and is not otherwise valid under the provisions relating to the effect of an existing former marriage. AS 25.05.051. Based on the evidence of record, the Board finds that the Veteran's marriage to N.N. was not legal under Alaska law, where the marriage occurred. Furthermore, court documents show that the Veteran was legally divorced from M.F. in March 1982. 38 C.F.R. § 3.206. The record does not show that the Veteran had any other marriages between March 1982 and July 2001. Therefore, the Board finds that there was no impediment to marriage in July 2001. Further, a July 2001 Marriage License and a July 2001 Certificate of Marriage show that the Veteran and the appellant were legally married according to the laws of the Pine Ridge Indian Reservation and the State of South Dakota. 38 C.F.R. § 3.205. As such, for purposes of the apportionment claim filed by the Veteran in November 2010 on the appellant's behalf due to his incarceration, the appellant is considered to be his legal spouse and a valid claimant. See 38 C.F.R. §§ 3.50, 3.1(j), 3.452(a). Having established that the appellant is a valid claimant, the Board will now turn to the issue of whether apportionment is warranted for the Veteran's spouse during the period of the Veteran's incarceration. 38 C.F.R. § 3.665 controls the compensation of incarcerated beneficiaries of VA benefits. It provides that any person incarcerated in a Federal, State, or local penal institution in excess of 60 days for conviction of a felony will not receive compensation in excess of specified amounts. See 38 C.F.R. § 3.665(a). If a Veteran is rated 20 percent disabled or more, then the Veteran will receive compensation payable under 38 U.S.C.A. § 1114(a), or the equivalent of a 10 percent rating. See 38 C.F.R. § 3.665(d)(1). If the Veteran is rated at less than 20 percent, then the Veteran will receive one-half the rate of compensation payable under 38 U.S.C.A. § 1114(a). See 38 C.F.R. § 3.665(d)(2). 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). In determining individual need, consideration is given to such factors as the apportionee claimant's income and living expenses, the amount of compensation available to be apportioned, the needs and living expenses of other apportionee claimants as well as any special needs, if any, of all apportionee claimants. Id. When a Veteran is incarcerated for a period in excess of 60 days for conviction of a felony, his compensation must be reduced, 'for the period beginning on the sixty-first day of such incarceration.' 38 U.S.C.A. § 5313 (a)(1); see also 38 C.F.R. § 3.665(a). VA is required to inform the person whose benefits are subject to this reduction 'of the rights of the person's dependents to an apportionment while the person is incarcerated, and the conditions under which payments to the person may be resumed upon release from incarceration.' 38 C.F.R. § 3.665(a). The term 'release from incarceration' includes participation in a work release or halfway house program, parole, and completion of sentence. 38 C.F.R. § 3.665(b). The record here shows that the current appeal stems from a claim of entitlement to an apportionment of the Veteran's benefits during a period of incarceration for a felony beginning on July [redacted], 2010. Following his incarceration, his VA benefits were reduced in accordance with 38 C.F.R. § 3.665 effective September 19, 2010. It is unclear from the record when the Veteran was released from the period of incarceration beginning July [redacted], 2010, though it appears from a March 8, 2012 statement that he was released on March [redacted], 2012. However, it also appears that the Veteran had additional period(s) of incarceration related to a felony conviction, though the exact periods are unclear. The specific periods of incarceration should be verified by the AOJ prior to implementing any award. In any event, the record shows that the Veteran and the appellant were legally married in July 2001. In November 2010, while incarcerated, the Veteran requested that an apportionment of his benefits be made to his wife. During his period of incarceration from July [redacted], 2010, until approximately March [redacted], 2012, the Veteran was being provided for at the penal institution, and any amount apportioned to his wife would not cause him undue hardship as he was not personally due this payment. For this reason, this appeal does not involve contested claim procedures, as the benefit provided to the appellant does not affect the compensation that was provided to the Veteran. The appellant has submitted financial statements in January 2011, May 2011, October 2011, and January 2013 showing that her monthly expenses exceed her monthly income. She also submitted a more recent statement in May 2014 showing additional income that was not previously reported, and there appear to be discrepancies in the amounts of the same expense reported between January, May, and October of 2011, and the appellant appears to have left out social security income received by her children that she reported elsewhere. Therefore, clarification should be sought from the appellant. While the Veteran was also provided with information and the appropriate forms with respect to his claim for an apportionment on behalf of the appellant for his period of incarceration, he has not responded with the appropriate forms or information. Nevertheless, given the facts of this particular case, including the Veteran's clear support of apportionment for the appellant, the Board finds that apportionment is warranted. However, the Board finds that there is not sufficient evidence of record on which to make a determination as to what the amount of apportionment should be. The AOJ should verify the dates of the Veteran's period(s) of incarceration, and the Veteran and the appellant are encouraged to provide all requested financial information accurately to allow the Agency of Original Jurisdiction to make the determination as to the amount warranted using the criteria set forth in relevant regulations, to include 38 C.F.R. § 3.665(e). ORDER Entitlement to apportionment on behalf of the appellant during the Veteran's period of incarceration from July [redacted], 2010, to approximately March [redacted], 2012, is granted. REMAND The appellant has also filed for a claim of entitlement to an apportionment of the Veteran's benefits during his period of incarceration beginning on July [redacted], 2010, on behalf of various children, which she and the Veteran refer to as the Veteran's stepchildren. The Veteran does not claim that any of the appellant's children are his biological children, and there is conflicting information as to whether the Veteran ever shared a household or was legally or financially responsible for any of them. Development is needed to reconcile discrepancies noted, to ensure a clear and complete record adequate for final appellate review. In January 2011, the appellant filed a statement regarding dependents, naming S.S. and C.S. as the Veteran's stepchildren. Consistent with that report, in an April 2011 statement from a service organization, a service representative stated that he spoke with the appellant and "she stated that of her 13 children, two are qualified for dependency." However, in May 2011, the appellant submitted a form claiming dependency for three stepchildren, S.S., C.S., and A.S, but then listed only two (S.S. and C.S.) on a separate May 2011 apportionment form. Then, on a May 2014 apportionment form, the appellant claimed apportionment on behalf of four entirely different children and provided no birthdates or identifying information for any of them. Additionally, the Board notes that while in November 2002, a step daughter, M.L., called to notify VA that the Veteran was incarcerated, and while the appellant reported in a January 2011 statement that she lived with the Veteran for 10 years, she also in the same statement reported that she did not and could not live with the Veteran and that he "has never hardly ever provided for me." Indeed, in earlier March 2004 communications with VA, the appellant reported that the Veteran left after they were married and never returned, that they were estranged, and emphasized that they had not and did not live together. Then in a February 2011 statement, the Veteran reported that he and the appellant were raising the appellant's grandchildren and intended to legally adopt them, and that he had "been around" C.S. and S.S. since they were seven. In a June 2011 statement, the Veteran reported that after his release from prison, he will be able to help the appellant out "as usual." However, when the Veteran was apparently released from prison in March 2012, he did not list the appellant's address on his statement in support of claim, which is not dispositive. Nevertheless, it remains unclear whether any claimed dependents were ever "members of the Veteran's household." Given the foregoing, the Board finds that remand is necessary. It is not disputed that none of the claimed children is the Veteran's biological child. However, the Veteran has expressed an intent to adopt one or more of them, and he and the appellant should be provided the opportunity to submit evidence of any legal adoption in support of the apportionment claims. Additionally, on remand, the appellant and/or the Veteran should submit evidence showing that prior to his July [redacted], 2010, incarceration, any of the claimed dependents was a member of the Veteran's household and/or received financial support from him. 38 C.F.R. § 3.57. Accordingly, the case is REMANDED for the following action: 1. Ensure that all contested claims procedures under 38 C.F.R. §§ 19.100, 19.101, 19.102 are followed with respect to all future actions in this matter. 2. Furnish the Veteran copies of the pertinent contents of the appellant's NOD, the responding SOC, and the substantive appeal. He should also be advised of the 30-day period for filing an answer to the substance of the appellant's appeal as provided by 38 U.S.C.A. § 7105A (b) (West 2014); 38 C.F.R. § 20.502. If he responds, notice should be provided to the appellant and other development required should be undertaken. 3. Notify the Veteran of his right to a hearing. If the Veteran requests a hearing, then the appellant, the appellant's representative, the Veteran, and the Veteran's representative are to be notified of the scheduling of the hearing. 4. Contact both the appellant and the Veteran and request that they complete VA Form 21-0788 (Information Regarding Apportionment of Beneficiary's Award), or an appropriate alternative form selected by the AOJ, for the relevant period(s) in question. Both parties should be informed that failure to provide complete and accurate information may adversely affect whether an apportionment for the period(s) in question is provided along with the amount that may be awarded. The notice to both the appellant and the Veteran (the parties) should explain, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding the appellant's request for apportionment of the Veteran's disability compensation benefits on behalf of the appellant's children or grandchildren during the pertinent period. The letters must also inform the parties about the information and evidence that is necessary to substantiate the appellant's request for further apportionment. 5. The AOJ should also take appropriate action, including contacting the appellant and the Veteran to request pertinent information and supporting evidence to make determinations regarding whether any claimed dependent, to specifically include S.S. and C.S., was ever a member of the Veteran's household or otherwise received support from the Veteran while not residing with him. 6. Considering all the updated submissions and financial status information from the parties, the AOJ should then readjudicate the appellant's claim on behalf of her children remaining on appeal for apportionment during the Veteran's incarceration in light of the findings made as to the financial circumstances/any hardships of the parties, and the legal provisions governing apportionments. The appellant and the Veteran have the right to submit additional evidence and argument on the matter or 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 2014). ____________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs