Citation Nr: A21016468
Decision Date: 10/06/21	Archive Date: 10/06/21

DOCKET NO. 210514-162481
DATE: October 6, 2021

REMANDED

Entitlement to an apportionment of the Veteran's Department of Veterans Affairs (VA) disability compensation benefits is remanded.

REASONS FOR REMAND

The Veteran served on active duty from July 1996 to July 2000. The appellant is the mother and custodian of the Veteran's child, A.H.

The apportionment decision on appeal was issued in December 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. The December 2020 decision denied apportionment of the Veteran's VA disability compensation benefits to the appellant on the behalf of his child, A.H. The appellant submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD) and elected the Direct Review option. VA furnished the Veteran with the content of the NOD and provided him an opportunity to file a brief, argument or request a different type of review. The Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38C.F.R. §20.303, 20.404 and 20.405.

The issue of entitlement to an apportionment of the Veteran's VA disability compensation benefits to the appellant on the behalf of his child, A.H., is remanded.

After a review of the evidence in this case, the Board has determined that this matter is not ripe for appellate review as all steps necessary to ensure the procedural and due process rights of the parties have not been completed.

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. §§ 20.400, 20.401, 20.402, 20.403, 20.404, 20.405, 20.406, 20.407. Specifically, 38 C.F.R. § 20.400 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 NOD, all interested parties will be furnished a copy of the substance of the NOD, including what type of review was selected and whether a hearing was requested. 38 C.F.R. § 20.403.

In this case, the rules regarding simultaneously contested claims have not been complied with. Specifically, review of the claims file does not reflect the Veteran received notice of the December 2020 apportionment decision at issue in this case. In this regard, the December 2020 apportionment decision was mailed to the Veteran's former address that he shared with the appellant since 2018. However, in September 2020 the Veteran had been informed of the apportionment claim at a different address than the appellant's address. Further, VA treatment records show the Veteran had moved by September 2020. This indicates he may not have received a copy of the decision. The record shows the Veteran has updated his address as recently as May 2021. 

There is no evidence that any attempt was made to deliver a copy of the December 2020 apportionment decision to the Veteran at his updated address. Adjudication by the Board without ensuring the Veteran received a copy of the decision on appeal and a readjudication of the claim, allowing him an opportunity to respond, would deprive the Veteran of his procedural and due process rights. Accordingly, the Board finds that a remand is necessary to correct an error in satisfying a regulatory or statutory duty.

The matters are REMANDED for the following action:

1. Ensure that the Veteran is sent, at his current address, a copy of the December 2020 apportionment decision.

2. Readjudicate the claim.

 

 

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.