Citation Nr: 21072682 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 19-26 189A DATE: December 6, 2021 REMANDED Entitlement to an apportionment of the Veteran's VA compensation benefits to the appellant for the benefit of the dependent children, Mr., J.R., and N.R., is remanded. Entitlement to an apportionment of the Veteran's VA compensation benefits for the dependent child, S.R., is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1992 to February 1993. The appellant is the Veteran's former spouse and mother of their children. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 apportionment decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2020 the Board remanded the matter for further development. The matter has been returned to the Board. 1. Entitlement to an apportionment of the Veteran's VA compensation benefits to the appellant for the benefit of the dependent children, Mr., J.R., and N.R., 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. The Board notes that this case involves a simultaneously contested claim, which requires compliance with special procedural regulations to ensure both parties' due process rights are protected. 38 U.S.C. § 7105A; 38 C.F.R. §§ 19.100-02, 20.500-04 (outlining procedural requirements). Notably, the agency of original jurisdiction (AOJ) must notify all parties of all actions taken by the AOJ, of the right and time limit for initiation of an appeal, and of the right to a hearing and representative. 38 C.F.R. § 19.100. Additionally, VA must mail evidence to each contesting claimant. VA claimants are entitled to the procedural requirements that ensure a claimant's right to full and fair assistance and adjudication of their claim. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 392-394 (1993). This includes ensuring that claimants are afforded the opportunity to respond to the arguments of other parties in a simultaneously contested claim. Sapp v. Wilkie, 32 Vet. App. 125 (2019). In January 2021, the appellant responded to the December 2020 supplemental statement of the case (SSOC). The appellant provided new evidence and argument that has not been provided to the Veteran. Further, in March 2021, the Board mailed a letter to the appellant notifying her the Board had docketed the appeal of the apportionment denial; however, this was sent to the Veteran's address. There is no indication in the claims file that the appellant or Veteran were notified of the Board's docketing of the appeal as required 38 C.F.R. § 19.100 and 38 C.F.R. § 19.102. As a result, VA has not complied with the applicable procedural regulations and a remand is necessary to ensure that the claims are developed and adjudicated in conformance with applicable procedural safeguards. Additionally, as noted above, the AOJ received a significant amount of pertinent evidence after the issuance of the December 2020 SSOC, but prior to certification of this appeal to the Board. In simultaneously contested claims, initial AOJ review of this evidence must be waived by both parties. 38 C.F.R. § 20.1304(d). Although 38 C.F.R. § 20.1304(d) provides for a process in which the substance of this evidence can be mailed to the opposing parties with a 60-day response period, the Board finds it more efficient for the AOJ to review this evidence in the first instance since a remand is required for compliance with the above procedural regulations. Further, both the appellant and the Veteran have provided partial evidence regarding the Veteran's child support payment history. The parties are advised to provide complete child support records, to include all related court documents, payment history documentation, the amount of any current arrearage, and proof of any garnished wages or payments made by the Veteran to the appellant. Finally, as both the Veteran and the appellant's income and expense information may have changed since they last submitted VA Form 21-0788, the parties must be advised to provide updated income and expense information, to include any child support payment made or received. 2. Entitlement to an apportionment of the Veteran's VA compensation benefits for the dependent child, S.R., is remanded. In this case, it appears that the rules regarding simultaneously contested claims have not been complied with. Specifically, the Veteran was not provided with the contents of the February 2021 substantive appeal. Further, in March 2021, the Board mailed a letter to the appellant notifying her the Board had docketed the appeal of the apportionment denial; however, this was sent to the Veteran's address. There is no indication in the claims file that the appellant or Veteran were notified of the Board's docketing of the appeal as required 38 C.F.R. § 19.100 and 38 C.F.R. § 19.102. As a result, there has not been compliance with the applicable procedural regulations and a remand is necessary to ensure that the claims are developed and adjudicated in conformance with applicable procedural safeguards. The matters are REMANDED for the following action: 1. The AOJ must ensure that all contested claims procedures set forth in 38 C.F.R. §§ 19.100 -19.102 have been accomplished, including notification of the action taken by the AOJ, hearing and representation rights to all interested parties, providing the content of the appellant's February 2021 substantive appeal to the Veteran, and sending the appellant and the Veteran notice the substantive appeal has been received and docketed by the Board as required by 38 C.F.R. § 19.100 and 38 C.F.R. § 19.102. 2. Request an updated VA Form 21-0788 or other comparable financial statement from both parties, advising each party that failure to provide the requested financial statement could result in an adverse decision for him or her in this matter. 3. Request that both parties provide updated child support records, to include all related court documents, payment history documentation, the amount of any current arrearage, and proof of any garnished wages or payments made by the Veteran to the appellant. 4. Thereafter, readjudicate the issue 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.