Citation Nr: 1756780	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO.  13-10 315	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to an apportionment of the Veteran's nonservice-connected pension benefits during the period of his incarceration spanning from August 2007 to December 2009 for the support of his spouse and child.


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Nicole L. Northcutt, Counsel



INTRODUCTION

The Veteran served on active duty from November 1972 to August 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision issued in August 2010 by a Regional Office (RO) of the Department of Veterans Affairs (VA).

As this action was initiated by the Veteran during his incarceration on behalf of his spouse and child and has not been contested by his spouse, this action is not a contested matter, and the related special provisions applicable to contested claims are inapplicable.  

In August 2017, the Veteran and his spouse testified during a Board hearing conducted at the RO before the undersigned Veterans Law Judge.

The appeal is REMANDED to the RO.  VA will notify the Veteran if further action is required.


REMAND

By way of background, the Veteran was imprisoned for his commission of a felony from June 2004 until December 2009, and in March 2007, the Veteran sought and was subsequently awarded nonservice-connected benefits effective as of the date of his claim.  However, upon learning of the Veteran's incarcerated status, the RO issued a letter in July 2007 explaining to the Veteran that his incarcerated status precluded the award of related compensation benefits.  In an August 2007 response, the Veteran requested that a portion of pension benefits be awarded to his wife and child during his incarceration.  However, the RO did not acknowledge this request, and in the August 2010 decision on appeal, the RO denied the apportionment claim, stating that the apportionment request was first received in December 2009, after the Veteran's incarceration had ended, which would mean the issue was moot by that time.  

During his Board hearing, the Veteran and his spouse both voiced their desire to have the apportionment claim adjudicated based on the date of receipt of the original apportionment request in August 2007.  Thus, the Board will remand this claim to allow such initial adjudication, and to also obtain the Veteran's marriage certificate reflecting his marriage to his current spouse and his child's birth certificate, neither of which are of record and both of which are required before any apportionment benefits may be granted.  

Accordingly, the case is REMANDED for the following actions:

1.  Request that the Veteran provide his marriage certificate reflecting his marriage to his current spouse and the birth certificate of his child for whom he requested an apportionment.  

2.  Then, readjudicate the Veteran's claim seeking an apportionment of his nonservice-connected pension benefits during the period of his incarceration spanning from August 2007 to December 2009 for the support of his spouse and child.  If the benefits sought are not granted in full, issue a supplemental statement of the case (SSOC) and return the case to the Board.

The Veteran 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 or by the United States Court of Appeals for 

Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




_________________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals


Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).