Citation Nr: 1732004 Decision Date: 08/08/17 Archive Date: 08/16/17 DOCKET NO. 17-34 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to apportionment of the Veteran's VA compensation benefits as a dependent child. ATTORNEY FOR THE BOARD J. Seay, Counsel INTRODUCTION The Veteran had active service from September 1986 to January 1993. The appellant is the Veteran's daughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 decision of the Montgomery, Alabama, Regional Office (RO) which denied apportionment of the Veteran's VA compensation benefits. The Board recognizes that the November 2009 decision was not appealed by the appellant. The Board is unable to locate a notice of disagreement concerning the decision or a substantive appeal. However, the appellant was issued a supplemental statement of the case on this matter in February 2015, and the Board acknowledged the November 2009 rating decision as being on appeal in a June 2015 remand. Therefore, the Board has taken jurisdiction over the issue and the issue is on appeal. The appellant's case was previously remanded by the Board in June 2015 in a single decision which also remanded an apportionment claim made by another appellant. However, such issues are distinct claims for apportionment made by two different appellants and must be adjudicated in separate decisions. Therefore, the apportionment claim made by the other appellant will be adjudicated in a separate decision by the Board. See 38 C.F.R. § 19.8 (2016); BVA Directive 8430, Board of Veterans' Appeals, Decision Preparation and Processing. FINDING OF FACT The evidence does not show that the appellant is a dependent child as she has not been shown to be under the age of 18, to have become permanently incapable of self support before the age of 18, or to have pursued a course of instruction at an approved educational institution after attaining the age of 18. CONCLUSION OF LAW The criteria for entitlement to an apportionment of the Veteran's VA compensation benefits as a dependent child have not been met. 38 U.S.C.A. § 5307 (West 2014); 38 C.F.R. §§ 3.450, 3.451, 3.452, 3.458 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The appellant's appeal concerns a benefit provided under chapter 53 of title 38, United States Code. The rules governing VA notice and assistance upon receipt of a claim for benefits as outlined in 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. Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). Nonetheless, there are special procedural requirements for simultaneously contested claims, such as a claim for apportionment. See 38 C.F.R. §§ 19.100, 19.101, and 19.102 (2016). In June 2015, the Board remanded the appellant's case because the Agency of Original Jurisdiction (AOJ) did not comply with the procedures related to simultaneously contested claims. 38 C.F.R. §§ 19.100 -19.102 (2016). The AOJ was directed to comply with the procedures related to simultaneously contested claims. It does not appear that the Board's remand directive was completed by the AOJ. However, review of the claims file shows that the appellant was provided notice of her right to representation and a hearing and a supplemental statement of the case was issued in February 2015, including the relevant laws and regulations. While it is unclear whether the other interested parties received all notice pursuant to contested claims, the claim herein is denied and the other interested parties would not be prejudiced by any error in notice. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). Legal Criteria and Analysis 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). VA regulations provide for two types of apportionments. The first is a "general" apportionment, which may be paid under the circumstances set forth in 38 C.F.R. § 3.450. The second is a "special" apportionment. Under this type of apportionment, without regard to any other provision regarding apportionment, where hardship is shown to exist, compensation may be specially apportioned between the veteran and his dependents on the basis of the facts of the individual case as long as it does not cause undue hardship to the other persons in interest. 38 C.F.R. § 3.451. For VA purposes, a dependent "child" is an unmarried person who is (i) under the age of 18 years; (ii) before the age of 18 years became permanently incapable of self support; or (iii) after attaining the age of 18 years and until completion of education or training (but not after attaining the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101 (4)(A) (West 2014); 38 C.F.R. § 3.57 (a) (2016). In this case, the appellant turned the age of 18 on January [redacted], 2008. She filed a claim for apportionment in July 2008, following her presumed graduation from high school. See VA Form 21-4138, signed and dated in July 22, 2008. The claims file includes a VA Form 21-674b, signed by the appellant in December 2008, indicating that her course work began in August 2008. However, this particular form is used for verification of continued school attendance and does not include the requisite information as to whether she was pursuing a course of instruction at an approved educational institution. In September 2009, the appellant was sent forms concerning her finances, VA Form 21-0788, Information Regarding Apportionment of Beneficiary's Award, and a form concerning her education, VA Form 21-674, Request for Approval of School Attendance. She did not complete either form. In April 2012, she was asked to complete the enclosed VA Form 21-674, which required the name of the school and type of education among other information. Again, the form was not completed by the appellant. While the Board recognizes the statements of the appellant and her mother regarding her attendance at school, the Board cannot find that the appellant was pursuing a course of instruction at an approved educational institution solely on the basis of lay assertions without the required information, including the name of the school she attended. Without such information, the Board is unable to conclude that the appellant was pursuing a course of instruction at an approved educational institution. Thus, any questions as to hardship or financial status are moot as the appellant must be pursuing education after turning the age of 18 to be considered a dependent of the Veteran in order to receive apportionment of his VA compensation benefits. 38 C.F.R. §§ 3.57 (a), 3.450, 3.451. Further, there is no evidence or assertion to indicate that the appellant was permanently incapable of self support before reaching the age of 18. Id. Accordingly, the appellant's claim for apportionment is denied. See Elias v. Brown, 10 Vet. App. 259, 263 (1997). ORDER Entitlement to apportionment of the Veteran's VA compensation benefits as a dependent child is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs