Citation Nr: 21002695 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 15-16 745 DATE: January 14, 2021 REMANDED The issue of whether an apportionment of benefits during the appellant’s period of incarceration is warranted pursuant to 38 C.F.R. § 3.665 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from 1961 to 1980. The appellant is his son. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2019 Memorandum Decision of the United States Court of Appeals for Veterans Claims (Court). That Memorandum Decision vacated the portion of a Board’s August 2016 decision in which the Board indicated that the appellant had withdrawn his claim for an apportionment of his dependency and indemnity compensation to be awarded to the Veteran’s surviving spouse. In the August 2016 decision, the Board explained that the record included a November 2014 report of contact with the appellant in which it was stated that the appellant wished to withdraw his apportionment claim. The appellant has since challenged the accuracy of that statement, but the Court instructed the Board in its Memorandum Decision to provide an adequate statement of its reasons and bases that that November 2014 report of contact satisfied the criteria of a withdrawal of an appeal. The Court further explained that its precedential decision in Hanson v. Brown 9. Vet. App. 29, 32 (1996) had allowed for withdrawals of claims or appeals based on a report of contact from a Department of Veterans Affairs (VA) social worker. The Court then clarified that its more recent ruling in Warren v. McDonald 28 Vet. App. 214 (2016) had departed from the Hanson holding and distinguished the facts of that case in reversing a Board decision that found that that Veteran had withdrawn his claim. The factors the Court in Warren had found illuminating were: the fact that the report of contact that purportedly represented a withdrawal was reflecting a telephonic, rather than in-person conversation; subsequent written statements that continued to refer to the purportedly withdrawn claim; and statements at the Board hearing that no withdrawal was being sought. As the Board did not discuss the factors set forth in Hanson and Warren, the Court therefore vacated the portion of the Board’s decision discussing the claimed withdrawal of the apportionment issue and directed the Board to adequately address the issue of whether the appellant had withdrawn that appeal. The Board ultimately finds that no withdrawal has been received that satisfies the criteria set forth in the regulations applicable to the appellant’s claim at the time of the November 2014 report of contact. As the Court noted in its memorandum decision, it had implicitly accepted a “report of contact” form in Hanson notwithstanding the fact that that report of contact did not represent a written request for withdrawal of a claim or appeal. However, in Hanson, the Court explicitly recognized that “there is no regulation governing the withdrawal of a claim when it is still before the [Regional Office].” Hanson, 9 Vet. App. at 32. Indeed, at the time of that decision in 1996, the pertinent regulation indicated only that a notice of disagreement “may be withdrawn in writing before a timely Substantive Appeal is filed.” 38 C.F.R. § 20.204(a) (1996). Effective April 2003, and applicable to the period that the report of contact at issue was created in November 2014, 38 C.F.R. § 20.204 was amended to remove the permissive use of the word “may” and clarified that withdrawals of an appeal “must be in writing” (emphasis added) except for those withdrawn on the record at a hearing. 38 C.F.R. § 20.204(b) (2014). This version of the regulation also explicitly clarified where to file the withdrawal depended on whether the appeal resided at the agency of original jurisdiction or if it had been already been transferred to the Board. Here, there is no doubt that the report of contact in November 2014 did not represent a request “in writing” from the appellant or his representative that the apportionment issue be withdrawn. There is no subsequent written statement or statement on the record or a hearing that withdraws the appellant’s appeal regarding that issue. As such, it is not withdrawn and remains pending. This issue was denied in a November 2013 letter to which the appellant submitted a January 2014 notice of disagreement. To date, there has been no Statement of the Case (SOC) issued that addresses that issue. The Board is therefore required to remand the issue to the agency of original jurisdiction so that the appellant may be provided an SOC and an opportunity to perfect an appeal to the Board if the claim remains denied. See Manlincon v. West, 12 Vet. App. 238 (1999). (Continued on the next page)   The matter is REMANDED for the following action: Send the appellant and his representative an SOC that addresses the issue of whether an apportionment of benefits during the appellant’s period of incarceration is warranted pursuant to 38 C.F.R. § 3.665. If the appellant perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Whitelaw, 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.