Citation Nr: 1806947 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-08 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to apportionment of the Veteran's benefits as custodian of the Veteran's minor children. ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to July 1969. The Appellant claims to be the custodian of the Veteran's minor children. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the decision, the RO denied apportionment of the Veteran's VA nonservice-connected pension benefits. The Appellant has appealed the denial of her claim for apportionment as custodian of the Veteran's minor children. The RO developed the claim as a simultaneously contested claim and the appropriate due process requirements for such a claim have been complied with. 38 U.S.C. § 7105A; 38 C.F.R. §§ 19.100-102, 20.500-504. The Board notes that the Appellant was not properly notified of the original denial in November 2011, though she attempted notice of disagreement in December 2011. A proper notice of the decision was sent to her in November 2013. She then filed an additional notice of disagreement in December 2013 and a statement of the case was issued in March 2014. She perfected her appeal the same month. The Board notes that the record shows the Veteran has appointed the Disabled American Veterans as his representative. The Appellant, has not appointed a representative. As such, the Board has not listed a representative on the cover page of this decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Appellant if further action is required. REMAND Under 38 U.S.C. § 5307 (2012), if a Veteran's child is not in his/her custody, all or any part of the compensation payable on account of the Veteran may be apportioned as may be prescribed by the Secretary. VA regulations provide for two types of apportionments. A "general" apportionment may be paid if the Veteran's child is not residing with the Veteran and the Veteran is not reasonably discharging his/her responsibility for the child's support. 38 C.F.R. § 3.450. The second type of apportionment is a "special" apportionment which may be paid without regard to any other provision regarding apportionment, where hardship is shown to exist, compensation may be apportioned between the Veteran and his/her dependent 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. In this case, the basis for the denial of apportionment was under the general provisions of 38 C.F.R. § 3.450, that is, although payments the Appellant received from the Veteran were not on a consistent basis or of an amount acceptable to her, the Veteran was providing some financial support of the minor children, MR and LR. In a January 2011 statement, the Appellant indicated that the Veteran was collecting benefits for herself and the Veteran's minor children, MR, and LR. She asserted that the children lived in Chicago with her and that the Veteran paid her inconsistent child support. She then submitted a child support payment history from the State of Illinois. First, the record is incomplete. While there is a payment history showing child support disbursements in 2009, 2010, and 2011, they are in varying amounts. There is no documentation regarding custody of the minor children, court-ordered child support payments, including the ordered amount of child support, or evidence of the amount of arrearages. There is no evidence of record of the Veteran and Appellant's legal relationship, e.g. no marriage certificate or divorce decree. Without this information, the Board is unable to determine eligibility for apportionment and whether the Veteran was "reasonable discharging his responsibility for the children's support." Finally, despite allegations by the Appellant that she was suffering financial hardship and provided supporting documentation, the RO did not consider a "special" apportionment which may be paid without regard to any other provision regarding apportionment, where hardship is shown to exist. 38 C.F.R. § 3.451. Such must also be accomplished upon Remand. Accordingly, the case is REMANDED for the following action: 1. The RO must secure the following outstanding records: documentation of the Veteran's and Appellant's legal relationship, including marriage certificate and divorce decree; documentation of custody of the minor children; documentation of court-ordered child support payments, including the ordered amount of child support; and documentation of the amount of arrearages, if any. All attempts to secure this evidence must be documented in the electronic record by the RO. 2. The RO must secure the following financial information: amount of VA benefits payable to the Veteran and apportioned to the Appellant, MR, and LR, prior to termination of benefits on November 1, 2016; income and expenses of the Veteran, Appellant, and the dependents for who apportionment was claimed (pay stubs, canceled checks, mortgage or rent statements, etc.) during the applicable time period; and any special needs of the Veteran, Appellant, and minor children, MR and LR. 3. The RO must then readjudicate the apportionment claim under both types of entitlement, general and special apportionment. The appropriate due process requirements for a simultaneously contested claim must be complied with. 38 U.S.C. § 7105A; 38 C.F.R. §§ 19.100-102, 20.500-504. If upon completion of the above action, the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all issues that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (2012), only a decision of the Board of Veterans' Appeals 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) (2017).