Citation Nr: 18158826 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 15-27 440 DATE: December 18, 2018 REMANDED Entitlement to an apportionment of the Veteran’s VA disability compensation benefits in excess of $150.00 per month. REASONS FOR REMAND This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 special apportionment decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that granted the Appellant, R.A.E., the Veteran’s spouse, a $150.00 per month apportionment of the Veteran’s VA disability compensation benefits on behalf of the Veteran’s son, A.D.E. The Appellant filed a timely notice of disagreement, appealing the amount of the apportionment awarded. The Board finds this matter must be remanded for several reasons. First, the Appellant provided evidence with her July 2015 substantive appeal that the Veteran receives more than $2,000.00 per month in disability benefits from the Social Security Administration (SSA) in addition to his VA disability compensation, which is paid at the 100 percent rate, and military retirement pay. There is no indication the Agency of Original Jurisdiction (AOJ) considered the Veteran’s SSA income in its March 2013 decision. The AOJ also failed to issue a supplemental statement of the case, as required by 38 C.F.R. § 19.37(a), after receiving the previously unconsidered evidence regarding the Veteran’s SSA income, even though it was clearly received prior to certification of this matter to the Board in January 2016. Second, the AOJ appears to have limited its March 2013 decision to whether an apportionment is warranted for the Veteran’s son, A.E.D. The Board notes the Appellant is currently listed as a dependent spouse on the Veteran’s award. Although the Appellant and the Veteran are estranged, there is no indication she has been found guilty of conjugal infidelity by a court having proper jurisdiction or has lived with another person and held herself out openly to the public to be the spouse of such other person; therefore, she remains eligible for an apportionment in her own right. See 38 C.F.R. § 3.458. Third, the AOJ appears to have considered whether an apportionment is warranted solely on behalf of the Appellant in an April 2014 decision, even though she had already appealed the March 2013 decision. In the April 2014 decision, the AOJ denied the Appellant an apportionment simply because she reported expenses but no income, finding she failed to establish hardship. The Board notes hardship is not required for a general apportionment under 38 C.F.R. § 3.450. It does not appear the Veteran provides any support for his dependents other than the currently apportioned amount, which the AOJ has indicated is solely on behalf of A.D.E. VA must consider the provisions of both 38 C.F.R. § 3.450 (general apportionment) and 38 C.F.R. § 3.451 (special apportionment) in the context of this appeal. In this regard, the Board notes the language of 38 C.F.R. § 3.451 that indicates an apportionment of more than 50 percent of a veteran’s benefits would ordinarily constitute undue hardship to the veteran while an apportionment of less than 20 percent of his or her benefits would not provide a reasonable amount for any apportionee is applicable in the context of both general apportionments under 38 C.F.R. § 3.450 and special apportionments under 38 C.F.R. § 3.451. See 38 C.F.R. § 3.453 (indicating the rate of apportionment of disability compensation will be determined under 38 C.F.R. § 3.451). Therefore, the AOJ must consider this provision in the context of this appeal and provide some context for its decision if it determines an apportionment of less than 20 percent of the Veteran’s VA disability compensation benefits is warranted. Fourth, it appears the July 2015 statement of the case mailed to the Veteran was returned as undeliverable. See 38 C.F.R. § 19.101. There is also no indication he has been apprised of the contents of the Appellant’s substantive appeal as required by 38 C.F.R. § 19.102. These deficiencies in the applicable contested claims procedures must be corrected before the Board can make a final decision regarding this matter. The matter is REMANDED for the following action: 1. Provide the Veteran a copy of the July 2015 statement of the case and notice of the contents of the Appellant’s substantive appeal at his last known address. 2. Verify whether either party receives SSA benefits (to include auxiliary benefits for dependents) and, if so, the payment rate throughout the appeal period. 3. Verify the Veteran’s military retirement pay and/or Combat-Related Special Compensation (CRSC) and/or Concurrent Retired and Disability Pay (CRDP) status with Defense Finance and Accounting Service (DFAS). 4. Request an updated VA Form 21-0788 from both parties, advising each party that failure to provide the requested financial statement could result in an adverse decision for them in this matter. 5. Reconsider the issue on appeal to include full consideration of the provisions of both 38 C.F.R. § 3.450 (general apportionments) and 38 C.F.R. § 3.451 (special apportionments), giving full consideration to the Appellant’s dependency status throughout the appeal period (i.e. since the date of her March 2012 apportionment claim), while also acknowledging the parties’ son, A.E.D., was granted an apportionment in his own right, effective February 2, 2014. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel