Citation Nr: A21018296
Decision Date: 11/16/21	Archive Date: 11/16/21

DOCKET NO. 201223-132967
DATE: November 16, 2021

ORDER

Entitlement to an apportionment of the Veteran's Department of Veterans Affairs (VA) compensation benefits in the monthly amount of $1,800 to the Veteran's spouse and minor dependents is dismissed.

FINDING OF FACT

The Veteran did not file a timely appeal in response to the January 2020 apportionment decision.

CONCLUSION OF LAW

Due to the untimeliness of the Veteran's Notice of Disagreement, the Board of Veterans' Appeals has no jurisdiction to adjudicate the merits of this appeal at this time.  38 U.S.C. § 7105A (b); 38C.F.R. §20.402.

REASONS AND BASES FOR FINDING AND CONCLUSION

In January 2020, the VA Agency of Original Jurisdiction (AOJ) granted an apportionment of the Veteran's VA compensation benefits in the monthly amount of $1,800 to the Veteran's spouse and minor dependents.  The Veteran and his spouse were both notified of this determination.  They were notified that since this is a contested claim, each may only appeal the decision to the Board at any time within 60 days from the date of the letter if either believed the decision is not in accordance with the law and the facts then of record.  Each of them was told that each could start the appeal process by downloading and completing a Notice of Disagreement.  Neither party submitted a Notice of Disagreement within 60 days.

In September 2020, the Veteran attempted to request a Higher-Level Review of the January 2020 determination; however, the AOJ notified the Veteran that he had not completed one of the areas on the form for this type of review and notified the Veteran of the incomplete application the next month.  The Veteran did not complete the application.  In December 2020, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), selecting the option to submit additional evidence.  The Veteran reported several dates of determinations for which he disagreed which do not coordinate with exact dates of any AOJ adjudicatory action; however, it is clear from his statements that he is attempting to appeal the actual apportionment award which is also listed as the issue on appeal by his representative.  

The Appeals Modernization Act (AMA) applies to all claims for which VA issues notice of an initial decision on or after the effective date of the AMA, which is February 19, 2019.  See 38 C.F.R. §§ 3.2400, 19.2.  Apportionment decisions are simultaneously contested claims. 38 C.F.R. § 20.402 provides 60 days to submit a Notice of Disagreement in simultaneously contested claims. 

As mentioned above, the AOJ issued a January 2020 apportionment decision.  The Veteran's Notice of Disagreement was received in December 2020, more than 60 days after the issuance of the apportionment decision.  This VA Form 10182, Notice of Disagreement is not timely to the January 2020 apportionment decision, because it was not received within 60 days of that apportionment decision.  See 38 C.F.R. § 20.402.

An untimely Notice of Disagreement deprives the Board of jurisdiction to consider the merits of an appeal.  38 U.S.C. § 7105 (c).  Because the Board lacks jurisdiction to consider this issue, dismissal is appropriate.  The Board is authorized to dismiss any appeal that fails to allege an error of fact or law.  38 U.S.C. § 7105 (d)(5).  Accordingly, this matter must be dismissed.

 

 

S. L. Kennedy

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Connolly

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.