Citation Nr: 21075322 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 14-00 276 DATE: December 20, 2021 REMANDED The appeal as to whether the resumption of the apportionment of the Veteran's Department of Veterans Affairs (VA) disability compensation benefits, to G.W., effective November 1, 2009, was proper, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1969 to July 1971 and from January 1978 to September 1983. This matter comes before the Board of Veterans' Appeals on appeal of a December 2010 apportionment decision issued by a Regional Office (RO) of VA, which resumed apportionment, in the amount of $1,390, of the Veteran's VA disability compensation benefits, to G.W., effective November 1 2009. The Veteran and G.W. were married in July 2006. This matter was previously before the Board in October 2015, when it was remanded for the Veteran to be afforded his requested hearing before a Veterans Law Judge (VLJ). Specifically, in the Veteran's December 2013 substantive appeal, which perfected the issue as to the propriety of the resumption of the apportionment of his disability compensation benefits to G.W., effective November 1, 2009, the Veteran requested a video conference hearing before a VLJ. Following the October 2015 Board remand, VA correspondence issued on May 18, 2021 notified the Veteran a Board hearing had been scheduled for August 12, 2021. However, an August 12, 2021 Report of General Information documented the Veteran logged into the site to participate in the hearing before a VLJ, but he waited for over an hour without a hearing, and requested to reschedule the hearing. Thereafter, VA correspondence was issued on September 1, 2021, to both the Veteran and G.W., notifying them that a Board hearing had been scheduled for October 15, 2021. The notes from the presiding VLJ for the October 15, 2021 Board hearing reflect that the Veteran was contacted and a message was left for him regarding the scheduled hearing, but he did not appear for the hearing, even after a wait period of 15 minutes. No good cause was shown for the Veteran's absence; therefore, his hearing request is deemed withdrawn. 38 U.S.C. § 20.704(d). G.W. also did not report for the scheduled hearing. The record reflects her September 1, 2021 notice letter was returned as undeliverable; however, it was mailed to the last address of record. As to the Veteran's representation, in March 1987, the Veteran submitted a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, in favor of North Carolina Department of Veterans Affairs. However, in a November 2006 statement, the Veteran attempted to appoint G.W. as his representative, and in a July 2009 statement, he attempted to appoint M.H. as his representative. In November 2009, North Carolina Department of Veterans Affairs revoked their representation of the Veteran. Thereafter, the Veteran submitted a VA Form 21-22a, Appointment of Individual as Claimant's Representative, dated in December 2009, in favor of his daughter, M.H., in the capacity of an individual providing representation under the provisions of 38 C.F.R. § 14.630. However, in a March 2012 statement, the Veteran attempted to appoint his son, D.B. as his representative, but cancelled this request in December 2012. Accordingly, as the Veteran has not submitted another VA Form 21-22 or 21-22a, and as he last indicated his prior appointment attempt be cancelled, the Board will recognize the Veteran as unrepresented. Additional relevant evidence has been associated with the record since the November 2013 Statement of the Case (SOC). 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, neither party has waived initial consideration by the Agency of Original Jurisdiction (AOJ) of any additional relevant evidence received after the November 2013 SOC. Nonetheless, as this appeal must be remanded for additional development for other matters, there is no prejudice to either party in this regard. Pursuant to 38 C.F.R. § 20.501(b), in the case of simultaneously contested claims, such as an apportionment, a substantive appeal must be filed within 30 days from the date of mailing of the SOC. No substantive appeal was received within 30 days of the issuance of the SOC issued on November 6, 2013. Instead, the Veteran's substantive appeal was received on December 31, 2013, slightly more than 30 days after the November 2013 SOC. Cf. Percy v. Shinseki, 23 Vet. App. 37 (2009) (unlike in Percy, procedural discrepancies cannot be waived in simultaneously contested claim due to prejudice to the other claimants). Nonetheless, the Board notes that the record reflects the Veteran had good cause for the delay in submitting a substantive appeal. Specifically, he was incarcerated during this period, which common sense dictates, creates inherent delays in sending and receiving mail. As such, the Veteran's December 2013 substantive appeal is considered a timely substantive appeal and this issue is again properly before the Board. As a final preliminary matter, a December 2020 apportionment decision terminated the apportionment for the Veteran's VA disability compensation benefits to G.W. effective January 1, 2021. The December 2020 apportionment decision constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act, applies. G.W. submitted a February 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), contesting the termination of apportionment. This appeal has been docketed at the Board, and will be the subject of a future Board decision, if otherwise in order. 1. The appeal as to whether the resumption of the apportionment of the Veteran's VA disability compensation benefits, to G.W., effective November 1, 2009, was proper, 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. 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. In particular, upon the filing of NOD in a simultaneously contested claim, all interested parties and their representatives will be furnished a copy of the SOC. 38 C.F.R. § 19.101. Additionally, 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. In this case, the record reflects VA has not fulfilled its obligations under the procedures relating to contested claims. Specifically, G.W. has not been provided with a copy of the November 2013 SOC or the content of the Veteran's December 2013 substantive appeal, with notice of her right to request a Board hearing. Further, neither party has been provided with a Board certification letter. To ensure compliance with all specialized contested claim procedures, remand is warranted to correct these deficiencies. Further, in a July 2009 statement, the Veteran reported he and G.W. were in the process of getting a divorce that he filed in family court in Edgefield County, South Carolina. The record reflects that the AOJ received information that the parties were not divorced in Cumberland County, North Carolina; however, information regarding a potential divorce issued in Edgefield County, South Carolina, is not of record. Further, in his December 2013 substantive appeal, the Veteran reported he had filed legal action against G.W. and submitted an October 2013 notice of hearing between the parties issued by the Family Court, 11th Judicial Circuit, County of Edgefield, South Carolina. Thus, any relevant documents pertaining to legal proceedings of the parties, including from the Family Court, 11th Judicial Circuit, County of Edgefield, South Carolina, should be submitted by either party. The matters are 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. Specifically: (a.) Document in the record that G.W. is provided with a copy of the November 2013 SOC, the content of the Veteran's December 2013 substantive appeal, with notice of her right to request a Board hearing, and a Board certification letter, and; (b.) Document in the record that the parties are provided with a Board certification letter. 2. Request either party submit any relevant documents pertaining to legal proceedings regarding divorce, including from the Family Court, 11th Judicial Circuit, County of Edgefield, South Carolina. 3. Readjudicate the issue on appeal, based on all the evidence of record, and issue a Supplemental Statement of the Case, to both parties, in compliance with the procedures for simultaneously contested claims, and return the case to the Board, if otherwise in order. M. C. GRAHAM 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.