Citation Nr: 21062261
Decision Date: 10/06/21	Archive Date: 10/06/21

DOCKET NO. 19-02 180
DATE: October 6, 2021

ORDER

Entitlement to an apportionment of the Veteran's VA compensation benefits to the appellant for the benefit of the minor child, R.J., is dismissed.

FINDING OF FACT

The appellant did not file a timely VA Form 9 in response to the November 2018 statement of the case.

CONCLUSION OF LAW

Due to the untimeliness of the appellant's VA Form 9, the Board has no jurisdiction to adjudicate the merits of this appeal at this time.  38 U.S.C. § 7105A(b); 38 C.F.R. §§ 19.55, 20.502(b).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from October 1982 to November 1997, from July 2007 to September 2010, and from October 2010 to April 2012.  The appellant is the mother of the Veteran's minor child.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 apportionment decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied the appellant an apportionment of the Veteran's VA compensation benefits.

In the August 2017 apportionment decision, the RO denied the appellant an apportionment of the Veteran's VA compensation benefits, stating that any apportionment of the Veteran's VA compensation benefits would cause him a hardship.  The appellant timely filed a notice of disagreement.  In November 2018, the RO issued an SOC which continued to deny the appellant an apportionment.  Apportionment decisions are simultaneously contested claims.  38 C.F.R. § 20.502 provides 30 days to submit a substantive appeal in simultaneously contested claims.  The RO sent the appellant an SOC on November 9, 2018.  The appellant submitted her substantive appeal, the VA Form 9, on January 9, 2019, 60 days after the SOC was sent to her. 

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To the extent that a January 2019 VA Form 9 disagrees with the denial of an entitlement to an apportionment of the Veteran's VA compensation benefits, that VA Form 9 is not timely with regards to the November 2018 SOC, because it was not received within 30 days of the November 2018 SOC.  See 38 C.F.R. § 20.502(b). 

In this instance an untimely VA Form 9 deprives the Board of jurisdiction to consider the merits of an appeal.   38 U.S.C. § 7105A(b).  Because the Board lacks jurisdiction to consider this issue, dismissal is appropriate.  38 U.S.C. § 7105(d)(5).  Accordingly, this matter must be dismissed.

 

 

MICHAEL E. KILCOYNE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Uller, 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.