Citation Nr: 21066443 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-14 548 DATE: November 1, 2021 REMANDED The issue of the propriety of the award of an apportionment of the Veteran's VA compensation benefits, to L.K., from August 1, 2013 to February 25, 2014, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1988 to February 2002. L.K. is the Veteran's former spouse; the Veteran and L.K. were married from October 2011 to February 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2014 apportionment decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), which awarded an apportionment of the Veteran's VA compensation benefits to his former spouse, L.K., from August 1, 2013 to February 25, 2014. In July 2021, the Veteran presented testimony at a virtual hearing before the undersigned Veteran's Law Judge. A transcript of this hearing is associated with the claims file. In conjunction with his February 2018, VA Form 9, substantive appeal, the Veteran submitted additional new, relevant evidence regarding this appeal. In this regard, contested claims are governed by 38 U.S.C. § 7105A, rather than 38 U.S.C. § 7105, so presumptive waiver provisions of 38 U.S.C. § 7105(e) do not apply. However, during the July 2021 Board hearing, the Veteran waived initial consideration of all additional evidence by the Agency of Original Jurisdiction (AOJ). Nonetheless, L.K. did not waive initial AOJ consideration of any additional evidence. 38 C.F.R. § 20.1304(d). Further, as the evidence received by the AOJ in February 2018 was prior to transfer and certification of the record to the Board, and as no Supplemental Statement of the Case (SSOC) was issued following receipt of this evidence, the appeal must be referred to the AOJ for issuance of a SSOC. 38 C.F.R. § 19.37(a). However, as this appeal must be remanded for additional development for other matters, there is no prejudice to either party in this regard. 1. The issue of the propriety of the award of an apportionment of the Veteran's VA compensation benefits to his former spouse, L.K., from August 1, 2013 to February 25, 2014, 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. A claim for an apportionment is a "contested claim" and is subject to special procedural regulations. 38 C.F.R. §§ 19.100, 19.101, 19.102; see also 38 C.F.R. §§ 20.500-20.504; 20.713. Under applicable criteria, all interested parties will be specifically notified of the action taken by the AOJ in a simultaneously contested claim and of the right and time limit for initiating an appeal, as well as hearing and representation rights. 38 C.F.R. § 19.100. Upon the filing of a notice of disagreement in a simultaneously contested claim, all interested parties will be furnished with a Statement of the Case (SOC). 38 C.F.R. § 19.101. When a substantive appeal is filed in a simultaneously contested claim, the content of the substantive appeal will be furnished to the other contesting parties to the extent that it contains information that 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. If a hearing is scheduled for any party to a simultaneously contested claim, the other contesting claimants and their representatives, if any, will be notified and afforded an opportunity to be present. The appellant will be allowed to present opening testimony and argument. Thereafter, any other contesting party who wishes to do so may present testimony and argument. The appellant will then be allowed an opportunity to present testimony and argument in rebuttal. Cross-examination is not permitted. 38 C.F.R. § 20.713. Here, the Veteran, who is the non-prevailing party, contends that his former spouse, L.K., was not entitled to an apportionment of his VA disability benefits. L.K. is the prevailing party, as an apportionment of the Veteran's benefits was granted from August 1, 2013 to February 25, 2014. In this case, the record reflects VA has not fulfilled its obligations under the procedures relating to contested claims. Specifically, L.K. has not been provided notice of the January 2018 SOC, the Veteran's February 2018 substantive appeal, or the March 2019 Board certification letter. Additionally, there's no indication in the claims file that she was provided notice of the Veteran's July 2021 Board hearing, to include her right to present testimony and argument. To ensure compliance with all specialized contested claim procedures, remand is warranted to correct these deficiencies. Finally, in her August 2013, VA Form 21-0788, Information Regarding Apportionment of Beneficiary's Award, and in an August 2013 statement, L.K. reported monthly school expenses. However, the record also reflects L.K. received Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 during the appeal period. Specifically, in August 2013 statements, L.K. reported, in part, she was using Chapter 35 benefits. The record does not reflect the amount of Chapter 35 benefits L.K. received during the appeal period at issue. However, any Chapter 35 education benefits received by L.K. during the appeal period at issue are relevant to assess her financial situation during the appeal period, in particular as she reported school expenses. Accordingly, the claim is remanded to obtain any copies of any claims and decisions regarding L.K.'s receipt of DEA Chapter 35 benefits, to include documentation of amount of DEA Chapter 35 benefits she received during the appeal period at issue. The matter is REMANDED for the following actions: 1. Ensure full compliance with the contested claims procedures outlined in 38 C.F.R. §§ 19.100-02, 20.500-04, 20.713. Specifically: (a.) Document in the record that L.K. is provided with the January 2018 SOC, the content of the Veteran's February 2018 substantive appeal, and a Board certification letter; and (b.) Document in the record that the L.K. is provided a copy of the transcript of the July 2021 hearing before this Board. The AOJ should allow L.K. an opportunity to respond and/or request her own hearing on this matter. 2. Obtain any copies of any claims and decisions regarding L.K.'s receipt of DEA Chapter 35 benefits, to include documentation of any amount of DEA Chapter 35 benefits she received during the appeal period at issue. 3. Readjudicate the issue of the propriety of the award of an apportionment of the Veteran's VA compensation benefits to L.K., from August 1, 2013 to February 25, 2014 based on all the evidence of record. Then, issue a SSOC to both parties in compliance with the procedures for simultaneously contested claims and return the case to the Board, if otherwise in order. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.