Citation Nr: 20006280 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 08-11 837 Date: January 24, 2020 REMANDED The issue of entitlement to an increased apportionment of the Veteran’s VA compensation benefits to the appellant, for the period from September 1, 2005, to June 1, 2011, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1973 to December 1973 and from February 2003 to April 2004. The appellant was the Veteran’s wife prior to their divorce in May 2011. This appeal is before the Board of Veterans’ Appeals (Board) from a January 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In that decision, the RO granted an apportionment of the Veteran’s VA disability benefits to the appellant in the amount of $65 per month, effective September 1, 2005. The appellant appealed the amount of the apportionment. The Veteran did not appeal. In a subsequent September 2011 decision by the RO in Nashville, Tennessee, the apportionment was stopped effective June 1, 2011, after the Veteran and the appellant were divorced. Neither party appealed this decision, and it is therefore outside the scope of the Board’s jurisdiction. In April 2009, the appellant and her daughter testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. In June 2010, the Board remanded the Veteran’s appeal due to the fact that the Veteran had not been properly notified of the April 2009 hearing. The remand instructed that a new hearing should be scheduled for the Veteran to offer testimony, and that proper notice should be given to both the Veteran and the appellant along with their representatives. However, there is no evidence in the record to indicate that a hearing was scheduled or that the Veteran failed to appear for a scheduled hearing. In an August 2017 decision, the Board awarded an increase in the amount of the apportionment of the Veteran’s VA compensation benefits awarded to the appellant. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). By a December 2018 Order, the Court, pursuant to a Joint Motion for Remand (JMR), vacated the Board’s August 2017 decision and remanded the case for action consistent with the JMR. Most recently, in December 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The issue of entitlement to an increased apportionment of the Veteran’s VA compensation benefits to the appellant, for the period from September 1, 2005, to June 1, 2011, is remanded. The JMR essentially directed the Board to provide the Veteran with a hearing on the issue of entitlement to an increased apportionment of his VA compensation benefits. The RO scheduled the matter for a hearing on December 4, 2019, which the Veteran attended with his representative. For the reasons discussed below, the Board finds that VA has not fulfilled its obligations under the procedures relating to contested claims and, thus, this claim must be remanded. A claim for an apportionment is a “contested claim” and is subject to special procedural regulations. 38 C.F.R. §§ 19.100, 19.101, 19.102; see also 38 C.F.R. §§ 20.500-20.504; 20.713. Under applicable criteria, all interested parties will be specifically notified of the action taken by the agency of original jurisdiction in a simultaneously contested claim and of the right and time limit for initiating an appeal, as well as hearing and representation rights. 38 C.F.R. § 19.100. If a hearing is scheduled for any party to a simultaneously contested claim, the other contesting claimants and their representatives, if any, will be notified and afforded an opportunity to be present. The appellant will be allowed to present opening testimony and argument. Thereafter, any other contesting party who wishes to do so may present testimony and argument. The appellant will then be allowed an opportunity to present testimony and argument in rebuttal. Cross-examination is not permitted. 38 C.F.R. § 20.713. A close review of the claims file reveals that VA has not fulfilled its obligations under the procedures relating to contested claims. Specifically, there is no indication in the claims file that the appellant or her representative were provided notice of the Veteran’s December 2019 Board hearing, to include her right to present testimony and argument. To ensure compliance with all specialized contested claim procedures, this deficiency must be corrected on remand. The matter is REMANDED for the following action: 1. Review the claims file and ensure that all contested claim procedures have been followed, to include all necessary notice to both parties. 2. In addition, the RO should provide the appellant with a copy of the December 2019 hearing transcript. The RO should allow the appellant an opportunity to respond and/or request her own hearing on this matter. 3. Readjudicate the claim on appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Erin J. Trojanowski, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.