Citation Nr: 19103641
Decision Date: 01/15/19	Archive Date: 01/15/19

DOCKET NO. 15-36 415
DATE:	January 15, 2019

REMANDED

Entitlement to an apportionment of the Veteran’s VA disability compensation benefits is remanded.

REASONS FOR REMAND

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, that denied the Appellant’s claim for an apportionment of the Veteran’s VA disability compensation benefits.

Initially, the Board notes this case involves a simultaneously contested claim; therefore, the provisions of 38 U.S.C. § 7105A are applicable.  Cases involving simultaneously contested claims are also subject to special procedural regulations.  See 38 C.F.R. §§ 19.100, 19.101, 19.102, 20.500, 20.501, 20.502, 20.503, 20.504.  It does not appear the Veteran was sent a copy of the September 2015 statement of the case as required by 38 C.F.R. § 19.101 or was provided notice of the content of the Appellant’s October 2015 substantive appeal as required by 38 C.F.R. § 19.102.  Thus, this matter must be remanded because the Agency of Original Jurisdiction (AOJ) failed to comply with the applicable procedural regulations.

It also appears the AOJ failed to consider whether a general apportionment is warranted under 38 C.F.R. § 3.450.  The June 2013 apportionment decision and the September 2015 statement of the case both indicate an apportionment is not warranted in this case because the Appellant failed to establish hardship.  The Board notes it is not necessary for a claimant to establish hardship in order to obtain a general apportionment under 38 C.F.R. § 3.450.  Further, a veteran cannot prevail on a claim of hardship when he or she is receiving additional benefits for a dependent and the apportioned amount is no more than that additional benefits.  Hall v. Brown, 5 Vet. App. 294, 295 (1993).  Thus, if the record establishes a period in which the Veteran was receiving additional benefits for the Appellant while not providing for her support, a general apportionment under 38 C.F.R. § 3.450 is warranted unless one of the prohibitions against an apportionment under 38 C.F.R. § 3.458 applies.

Finally, the Appellant contends her divorce from the Veteran is not final.  The Board notes the divorce decree submitted by the Veteran in February 2014 is not signed by himself or his attorney.  The Board finds further efforts are necessary to verify the parties’ marital status.  Nevertheless, a change in marital status does not prohibit a retroactive apportionment from the date of the Appellant’s August 2011 apportionment claim until the date of the divorce, so the additional development actions noted above are necessary even if the parties are now divorced.

The matter is REMANDED for the following action:

1. Verify the parties’ addresses and marital status.

2. Provide the Veteran a copy of the September 2015 statement of the case and notice of the contents of the Appellant’s October 2015 substantive appeal as required by VA regulation.

3. Request a VA Form 21-0788 or other comparable financial statement from both parties, advising each party that failure to provide the requested financial statement could result in an adverse decision for him or her in this matter.  The financial statements submitted should detail each party’s income and expenses throughout the appeal period (i.e. since August 2011) to the extent possible.

4. 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).

 

M. HYLAND

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	L. S. Kyle, Counsel