Citation Nr: A21017153 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 210607-164926 DATE: October 22, 2021 REMANDED Entitlement to an apportionment of the Veteran's VA compensation benefits to the appellant, on behalf of the minor child L.T., is remanded. REASONS FOR REMAND The Veteran served on active duty from March 2004 to February 2012. The appellant is the mother and custodian of the Veteran's child, L.T. This matter is on appeal from a June 2020 decision in which the Agency of Original Jurisdiction (AOJ), denied a request for an apportionment of the Veteran's benefit payment. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for to seek review of VA decisions. This decision has been written consistent with the new AMA framework. In June 2021, the appellant appealed this issue to the Board under the Evidence Review lane by submitting a notice of disagreement under the AMA. See 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). 1. Entitlement to an apportionment of the Veteran's VA compensation benefits to the appellant, on behalf of the minor child L.T., is remanded. The issue of entitlement to an apportionment of the Veteran's VA disability compensation benefits is remanded to correct a duty to notify error that occurred prior to the decision on appeal. The AOJ failed to notify the Veteran of the June 2020 decision. Further, the June 2020 letter also did not correctly inform the parties how to appeal the decision. Although the letter notified the appellant she could file a Notice of Disagreement with the Board within 60 days of the date of the letter, it identified a Notice of Disagreement as a written statement that identified the specific part of the decision that there was a disagreement with and the intention to appeal. The letter did not instruct the appellant that a notice of disagreement needed to be completed on a VA Form 10182, Decision Review Request: Board Appeal. In August 2020, the Board erred by informing the Veteran, not the appellant, that the request for an appeal needed to be submitted on the VA Form 10182. In May 2021 the appellant was notified that the appeal request needed to be filed on a VA Form 10182 and she subsequently filed on the prescribed form within a month of receiving the letter. Pursuant to the AMA, remand is permitted only to cure pre-decisional errors. See 38 C.F.R. § 20.802 (The Board may remand for correction of any other error by the agency of original jurisdiction in satisfying a regulatory or statutory duty). Here, the appeal before the Board involves a simultaneously contested claim; therefore, the provisions of 38 U.S.C. § 7105A are applicable. Under the Appeals Modernization Act, cases involving simultaneously contested claims are also subject to special procedural regulations. See 38 C.F.R. §§ 20.400-20.407. Notably, 38 C.F.R. § 20.400 provides that 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 submitting a Notice of Disagreement to the Board as well as hearing and representation rights. Any claimant or representative of a claimant may file a Notice of Disagreement within the statutorily mandated time limits. See 38 C.F.R. § 20.401. The Notice of Disagreement from the person adversely affected must be filed within 60 days from the date of mailing of the notification of the determination to him or her; otherwise, that determination will become final. See 38 C.F.R. § 20.402. The date of mailing of the letter of notification will be presumed to be the same as the date of that letter for purposes of determining whether a Notice of Disagreement has been timely filed. Id. Here, the AOJ did not properly notify the parties of the decision or their rights to appeal, to include their right to representation and a hearing. Accordingly, the appeal is remanded for the AOJ to cure the pre-decisional error by executing the special contested claims notification requirements as required by law. Further, the Board notes that evidence was submitted and received by VA prior to the decision on appeal. Specifically, in May 2020 the appellant submitted the results of a paternity test. However, this evidence was not considered at the time of the denial of the apportionment. The AOJ's failure to undertake these actions prior to the June 2020 decision represent a pre-decisional error that must be corrected on remand. (Continued on the next page) The matters are REMANDED for the following action: 1. Ensure full compliance with the contested claims procedures outlined in 38 C.F.R. §§ 20.400-20.407. Specifically, mail a copy of the June 2020 letter to the Veteran. Notify the parties of their right to appeal and to representation and to a hearing. 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.