Citation Nr: 1827872 Decision Date: 05/09/18 Archive Date: 05/18/18 DOCKET NO. 14-28 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an increased initial evaluation in excess of 30 percent for major depressive disorder with anxious distress (previously rated as depressed and anxious mood). 3. Entitlement to an increased initial compensable evaluation for bilateral hearing loss. 4. Whether the decision to remove the Veteran's mother as a dependent for VA purposes and discontinue her apportionment effective August 28, 2000 was proper. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Dodd, Counsel INTRODUCTION The Veteran served on active duty from January 1985 to July 1989. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of entitlement to an initial compensable evaluation for bilateral hearing loss was previously before the Board in November 2009 and November 2013 and remanded for additional development. That development having been completed, this claim is once again before the Board. FINDINGS OF FACT 1. On December 2016, prior to the promulgation of a decision in the appeal, the RO received notification from the Veteran that he desired a withdrawal of the issues of entitlement to service connection for PTSD, as well as entitlement to increased evaluations for major depressive disorder with anxious distress and bilateral hearing loss that were on appeal before the Board. 2. The appeal for reinstatement of apportionment of the Veteran's benefits to his dependent mother was made by the Veteran; it was not made by his dependent mother. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of the issues of entitlement to service connection for PTSD; entitlement to an increased initial evaluation in excess of 30 percent for major depressive disorder with anxious distress; and entitlement to an increased initial compensable evaluation for bilateral hearing loss have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The Veteran is not a proper claimant for the reinstatement of apportionment to his dependent mother of his VA compensation benefits. 38 U.S.C. §§ 7104, 7108 (2012); 38 C.F.R. § 3.665 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS PTSD, Major Depressive Disorder with Anxious Distress, and Bilateral Hearing Loss The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, in a signed letter dated December 2016 and received December 2016, the Veteran expressed that he desired to withdraw his appeal of the issues of entitlement to service connection for PTSD; entitlement to an increased initial evaluation in excess of 30 percent for major depressive disorder with anxious distress; and entitlement to an increased initial compensable evaluation for bilateral hearing loss. Hence, there remain no allegations of errors of fact or law regarding this claim for appellate consideration. Accordingly, the Board does not have jurisdiction to review these appealed issues and they are dismissed. Apportionment The facts are not in dispute. The Veteran has been incarcerated in a correctional facility for a felony conviction and the compensation directly payable to him has been reduced to 10 percent. His mother, who had been in receipt of apportionment of his benefits since November 1, 1999, was removed as a dependent and apportionment terminated when evidence showed that she was cohabitating with another man in August 2000, whom she later remarried in March 2004. Her spouse then died in October 2010. The Veteran currently requests that his mother be recognized as his dependent for the periods of time before and after her second marriage from March 2004 to October 2010 for the apportionment of his VA compensation benefits during his continuing period of incarceration. He has disagreed with VA's November 2012 decision and filed a substantive appeal concerning it, as if in his own right. The Board, in accordance with the provisions of 38 U.S.C. § 7104 (2012), has reviewed and considered all the evidence and material of record in the Veteran's claims file. The Board finds that the Veteran's appeal on the issue of a reinstatement of apportionment of his VA compensation benefits to his dependent mother during the period of his incarceration must be dismissed. Although an apportionment arises from a Veteran's benefits, an apportionment is an entity which is legally separate from those benefits. Thus, when a Veteran's dependent files for an apportionment, the dependent seeks to exercise his or her right to an apportionment. Belton v. Principi, 17 Vet. App. 209, 211 (2003); 38 U.S.C. § 5307; Redding v. West, 13 Vet. App. 512, 514-15 (2000); Hall v. Brown, 5 Vet. App. 294, 294-95 (1993). The law requires that an appellant who files an appeal is required to have standing. For an appellant to have standing, that individual must demonstrate that he or she has been injured and has a "personal stake in the outcome of the controversy." Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962); Belton v. Principi, 17 Vet. App. 209, 211 (2003); Redding v. West, 13 Vet. App. 512, 514 (2000). The Veteran does not have a legal claim or standing to pursue an appeal for a reinstatement of apportionment for his dependent mother. It is her claim, and any appeal seeking an increased apportionment to her decision would have to be from her. This clearly is not an appeal from her for a reinstatement of apportionment of the Veteran's VA compensation benefits. A party must show that he is a proper claimant before the Board may exercise jurisdiction. See Aguilar v. Derwinski, 2 Vet.App. 21 (1991). 38 C.F.R. § 3.665(c)(1) states, in pertinent part, that all or part of the compensation not paid to an incarcerated Veteran may be apportioned to the Veteran's dependent parent, and that consideration shall be given to such factors as the apportionee claimant's income and living expenses. Although the payment of an apportioned share of an incarcerated Veteran's compensation benefits to the Veteran's dependent mother is a benefit under the laws administered by the VA, it is the Veteran's mother, not the Veteran, who is potentially eligible for such a benefit. As the Veteran is not a proper claimant for this benefit, his appeal for her entitlement to a reinstatement of apportionment of his VA compensation benefits during the period of his incarceration must be dismissed. 38 U.S.C. §§ 7104, 7108; 38 C.F.R. § 3.665. ORDER The Veteran's appeal for entitlement to service connection for PTSD is dismissed. The Veteran's appeal for entitlement to an increased initial evaluation in excess of 30 percent for major depressive disorder with anxious distress (previously rated as depressed and anxious mood) is dismissed. The Veteran's appeal for entitlement to an increased initial compensable evaluation for bilateral hearing loss is dismissed. The Veteran's appeal for reinstatement of his mother as dependent for VA purposes and continuation of her apportionment of his VA compensation benefits is dismissed. ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs