Citation Nr: 18151057 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 14-29 530 DATE: November 16, 2018 ORDER The Appellant’s claim of entitlement to an apportionment of the Veteran’s VA disability compensation benefits is reopened. REMANDED Entitlement to an apportionment of the Veteran’s VA disability compensation benefits is remanded. FINDING OF FACT VA has received new evidence since a final December 2009 decision that relates to the basis for the prior denial of the Appellant’s apportionment claim and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW 1. The criteria for reopening the Appellant’s claim of entitlement to an apportionment of the Veteran’s VA disability compensation benefits have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that denied the Appellant’s claim of entitlement to an apportionment of the Veteran’s VA disability compensation benefits. The Board acknowledges the Agency of Original Jurisdiction (AOJ) issued a second apportionment decision in February 2013, which the Appellant also appealed. Nevertheless, the present appeal relates back to the January 2012 decision due to the Appellant’s timely March 2012 notice of disagreement, as noted by the AOJ in an April 2012 notice letter to the parties. The Appellant is the mother and custodial parent of four of the Veteran’s minor children. She has sought an apportionment of the Veteran’s VA disability compensation benefits on behalf of the children on numerous occasions since filing an initial apportionment claim in April 2002. All of her previous claims have been denied. The most recent final apportionment decision was issued in December 2009. At that time, the AOJ denied an apportionment on the basis that the Veteran was providing adequate support for his children. The Appellant did not file a notice of disagreement within the 60-day appeal period following the December 2009 decision; therefore, it is final. 38 U.S.C. § 7105A; 38 C.F.R. § 20.501. In October 2011, the Appellant filed the apportionment claim that led to the present appeal. Although the AOJ has apparently deemed the issue reopened, a determination of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider an underlying claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Thus, the Board must address the question of whether new and material evidence has been presented to reopen the claim regardless of the AOJ’s action. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The Court of Appeals for Veterans Claims (Court) has held the phrase “raises a reasonable possibility of establishing the claim” must be viewed as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Court emphasized that 38 C.F.R. § 3.156 “does not require new and material evidence as to each previously unproven element of a claim.” Id. at 120. The Court further explained the provisions of 38 C.F.R. § 3.156(a) creates a “low threshold” for finding new and material evidence that is favorable to the claimant. Id. Here, the Board finds VA has received new evidence since the final December 2009 decision that relates to the basis of the prior denial and raises a reasonable possibility of substantiating the Appellant’s apportionment claim. Specifically, the Appellant submitted court records that show the Veteran is approximately $19,000.00 in arrears on his child support obligations. This evidence relates to the basis for the prior denial because it suggests the Veteran may not be reasonably discharging his duty to support his children. As such, it warrants reopening of the Appellant’s apportionment claim. REASONS FOR REMAND The parties appeared at a hearing before the undersigned in February 2018. A transcript of the hearing is of record. During the hearing, the Appellant submitted evidence that shows the Veteran is approximately $19,000.00 in arrears on his child support obligations. Although the Appellant waived AOJ consideration of this evidence on the record during the hearing, 38 C.F.R. § 21.304(d) requires both parties to a simultaneously contested claim to waive AOJ consideration of newly submitted evidence. The Veteran has not waived AOJ consideration of the newly submitted evidence and rather testified that he has recently made payments toward his child support arrearage. Further, both parties requested the opportunity to submit updated financial statements during the hearing, and the Board agrees updated financial statements are necessary to make an informed decision regarding this appeal. The matter is REMANDED for the following action: 1. Ask the Veteran to submit a VA Form 21-0788 (Information Regarding Apportionment of Beneficiary’s Award) or other financial statement detailing his income and expenses throughout the appeal period (October 2011 to the present). 2. Ask the Appellant to submit a VA Form 21-0788 (Information Regarding Apportionment of Beneficiary’s Award) or other statement detailing her income and expenses from the date of her most recent VA Form 21-0788 (November 2013) to the present. 3. Reconsider the issue on appeal, to include consideration of both a general apportionment under 38 C.F.R. § 3.450 (i.e., the Veteran is not reasonably discharging his duty to support his children) and a special apportionment under 38 C.F.R. § 3.451 (i.e., the Appellant has established hardship to the extent that additional financial support from the Veteran is warranted despite the current level of support shown). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel