Citation Nr: 18143589 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 15-06 215 DATE: October 23, 2018 REMANDED The issue of whether a timely notice of disagreement (NOD) was filed as to an August 2013 decision that discontinued an apportionment of the Veteran’s Department of Veterans Affairs (VA) disability compensation benefits is remanded. REASONS FOR REMAND The Veteran served in the Philippine Commonwealth Army from December 1941 to October 1942 and from September 1945 to January 1946. Unfortunately, he died in July 2018. The appellant asserts that she was the Veteran’s spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 decision of the VA Regional Office (RO) in Manila, Republic of the Philippines, which determined that the appellant’s June 2014 NOD was not timely. The underlying claim involves an August 2013 Special Apportionment Decision that discontinued an apportionment to the appellant and her daughter. The United States Court of Appeals for Veterans Claims (Court) has held that an apportionment claimant becomes ineligible for apportionment at the time of the Veteran’s death. See Marrero v. Gober, 14 Vet. App. 80, 82 (2000) (per curiam). However, the Court left open the possibility that retroactive payment might be made pursuant to a claim for apportionment in an appropriate case. Id. Therefore, the current appeal was not rendered moot by the Veteran’s death during the pendency of the appeal, as the appellant may still be entitled to retroactive benefits for the period on appeal prior to the Veteran’s death. 1. Whether a timely NOD was filed as to an August 2013 decision that discontinued an apportionment of the Veteran’s VA disability compensation benefits is remanded. A claim for an apportionment is a “contested claim” and is subject to special procedural regulations. 38 C.F.R. §§ 19.100, 19.101, 19.102; see also 38 C.F.R. §§ 20.500-20.504; 20.713. Under applicable criteria, all interested parties will be specifically notified of the action taken by the agency of original jurisdiction in a simultaneously contested claim and of the right and time limit for initiating an appeal, as well as hearing and representation rights. 38 C.F.R. § 19.100. While the issue on appeal is the timeliness of the NOD, the Board finds that this is a threshold issue for an appeal of the underlying apportionment decision; therefore, the special procedural regulations for contested claims apply. Upon the filing of a notice of disagreement (NOD) in a simultaneously contested claim, all interested parties will be furnished with a 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 will be furnished to the other contesting parties to the extent that it contains information that could directly affect the payment or potential payment of the benefit which is the subject of the contested claim. 38 C.F.R. § 19.102. A close review of the claims file reveals that VA has not fulfilled its obligations under the procedures relating to contested claims. Specifically, the Veteran, prior to his death, was not provided notice of the appellant’s February 2015 substantive appeal. To ensure compliance with all specialized contested claim procedures, this deficiency must be corrected on remand. The matter is REMANDED for the following action: 1. Review the claims file and ensure that all contested claim procedures have been followed to include all necessary notice to the Veteran’s estate and/or any other appropriate party. It is noted that the appellant asserts that she was the Veteran’s spouse, and the Veteran’s death certificate notes his civil status as “widow.” Furnish the Veteran’s estate and/or any other appropriate party with the contents of the appellant’s February 2015 substantive appeal. 2. Then, readjudicate the issue on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel