Citation Nr: 21065809
Decision Date: 10/27/21	Archive Date: 10/27/21

DOCKET NO. 19-21 686
DATE: October 27, 2021

REMANDED

Entitlement to an apportionment of the Veteran's VA disability compensation benefits to the appellant on behalf of the Veteran's child, F.M., is remanded.

REASONS FOR REMAND

The Veteran served on active duty from June 1999 to November 2008 and April 2010 to November 2014. The appellant is the mother and custodian of the Veteran's child, F.M.

This appeal comes before the Board of Veterans' Appeals (Board) from a January 2017 apportionment decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

1. Entitlement to an apportionment of the Veteran's VA disability compensation benefits to the appellant on behalf of the Veteran's child, F.M., is remanded.

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.

Specifically, 38 C.F.R. § 19.100 provides that, in a simultaneously contested claim, all interested parties are to be notified of the action taken by the AOJ and of the right and time limit for initiating an appeal, as well as notification of the right to a hearing and representation.

Upon the filing of a notice of disagreement, all interested parties will be furnished a copy of the statement of the case (SOC). 38 C.F.R. § 19.101.

When a substantive appeal is filed, the content will be furnished to the other contesting parties to the extent that it contains information which could directly affect the payment or potential payment of the benefit which is the subject of the contested claim. 38 C.F.R. § 19.102.

In this case, VA has not fully complied with these procedures. Specifically, the record does not reflect that the Veteran was provided the June 2019 SOC at his correct address or the content of the appellant's July 2019 substantive appeal. Accordingly, a remand is necessary to provide the Veteran with the June 2019 SOC and a copy of the July 2019 substantive appeal in compliance with the contested claims procedures.

Additionally, the appellant has indicated that her financial status has changed throughout the appeal period. The outcome of apportionment cases depends on the financial status of the parties. The appellant last submitted documents detailing her financial status several years ago and the Veteran has yet to provide documents regarding his financial status. Therefore, the Board finds that the completion of VA Forms 21-0788 (Information Regarding Apportionment of Beneficiary's Award) would be helpful in resolving the issue on appeal.

The matters are REMANDED for the following action:

1. Ensure full compliance with the contested claims procedures outlined in 38 C.F.R. §§ 19.100-02, 20.500-04. Specifically, ensure that the Veteran is provided with the June 2019 SOC and the content of the Appellant's July 2019 substantive appeal at his current address.

2. Furnish VA Forms 21-0788 (Information Regarding Apportionment of Beneficiary's Award) to the appellant and the Veteran and request that they complete the forms indicating their income and expenses throughout the appeal period.

Advise that failure to provide the requested financial statements could result in an adverse decision in this matter.

3. After the development directed above has been completed to the extent possible, readjudicate the claim on appeal.

 

 

MARJORIE A. AUER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Gastoukian, Kelly

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.