Citation Nr: 21011149 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-06 215 DATE: March 1, 2021 ORDER A timely notice of disagreement with the August 13, 2013, decision that terminated apportionment benefits, was received. The appeal to this extent only is granted. REMANDED The issue of the propriety of the termination of the appellant’s apportionment benefits is remanded. FINDINGS OF FACT 1. An August 13, 2013, decision terminated the appellant’s apportionment benefits. 2. In September 2013, within one year of the notification of the August 13, 2013, decision, the appellant filed a timely notice of disagreement (NOD). CONCLUSION OF LAW By means of a notice of disagreement received by the RO in September 2013, the appellant has initiated an appeal from the August 13, 2013, decision that terminated apportionment benefits. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 19.34, 20.201, 20.300, 20.302(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the Philippine Commonwealth Army from December 1941 to October 1942 and from September 1945 to January 1946. The Veteran passed away in July 2018. The appellant asserts that she was the Veteran’s spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 decision of the VA Regional Office (RO) in Manila, Republic of the Philippines, which determined that the appellant’s June 2014 NOD was not timely. The underlying claim involves an August 2013 Special Apportionment Decision that terminated an apportionment to the appellant and her daughter. The Board remanded the matter for compliance with contested claims procedures in October 2018. The matter has been returned to the Board. 1. A timely notice of disagreement with the August 13, 2013, decision that terminated apportionment benefits, was received. The appeal to this extent only Pursuant to 38 U.S.C. § 7105(a) (2012), a request for appellate review by the Board of a decision by the RO is initiated by a notice of disagreement (NOD) and completed by a substantive appeal after a statement of the case has been furnished. 38 C.F.R. § 20.200 (2012). In the case of simultaneously contested claims, a claimant, or his or her representative, must file a notice of disagreement with a determination by the RO within 60 days from the date that the RO mails notice of the determination to him or her. Otherwise, the determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 U.S.C. § 7105(b)(1); 38 C.F.R. § 20.302 (2012). A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the RO and a desire to contest the result will constitute a notice of disagreement. While special wording is not required, the notice of disagreement must be in terms which can reasonably be construed as disagreement with that determination and a desire for appellate review. 38 U.S.C. § 7105; 38 C.F.R. § 20.201 (2012). The Board emphasizes that the issue of timeliness of appeal is a question of law. By way of history, the appellant was in receipt of an apportionment in the amount of $300.00 per month from April 1, 2004. In January 2013, the Veteran requested the appellant and dependent child be removed from his award and the apportionment be terminated. In May 2013, the RO notified the appellant of the proposal to terminate the apportionment effective January 1, 2013, the first day of the following month following the decision that declared the nullity of the marriage between the Veteran and the appellant. The notification letter allowed the appellant 60 days to respond to the notice and submit any evidence. In August 2013, the RO terminated the appellant’s apportionment and notified her that an overpayment of benefits had been paid. The notification letter informed the appellant that if she disagreed with the determination she could file a NOD within 60 days of the August 2013 notification letter. In September 2013, the appellant inquired about her monthly benefits. The RO sent another letter notifying her of the termination of the apportionment and further notifying her that she had 60 days from the notification letter dated August 13, 2013, to file a NOD. On September 20, 2013, the RO received a letter from the appellant. The appellant indicated that the decision the Veteran submitted regarding the nullity of their marriage was not the final decision and the case matter of the validity of their marriage was still in appellate status. She further indicated that if the appeal regarding the validity of her marriage was not granted that would be the right time for the VA to terminate the apportionment on her behalf, but that the apportionment for their dependent child should not be terminated. She stated that she knew her benefits would stop but should not be stopped at this time. She further stated that their daughter’s benefits should not stop because she was the only minor child of the Veteran. She concluded the letter by hoping the VA would consider her appeal for her benefits. In January 2014, the RO responded to the September 2013 letter as an inquiry regarding her apportionment benefits. The RO notified her of the termination of the apportionment and gave her instructions on how to reopen her claim. In June 2014, the appellant informed the RO of issues receiving mail due to issues with the postman. She further stated that she disagreed with the 2013 decision to terminate the monthly benefits for their daughter and she would not disagree with the termination of her benefits if her appeal regarding the validity of her marriage became final. In June 2014, the RO notified the appellant that her June 2014 letter was considered an untimely NOD to the August 2013 notification letter regarding termination of apportionment benefits. The letter notified the appellant that she had one year to appeal the decision finding her June 2014 letter as an untimely NOD. In June 2014, the appellant submitted a letter informing the RO she disagreed with the decision denying her claim on appeal. In January 2015, the RO issued a statement of the case, identifying the issue as one of timeliness of appeal of the August 2013 Special Apportionment Decision. The appellant perfected her appeal, submitting VA Form 9, Appeal to Board of Veterans’ Appeals in February 2015. The appeal has thus been certified to the Board as one of timeliness of appeal. The Board finds the September 17, 2013, letter from the appellant constituted a timely notice of disagreement for the August 2013 Special Apportionment Decision, which terminated apportionment benefits to the appellant. Although the RO determined that the June 2014 letter was not filed within 60 days of the August 2013 decision, the September 2013 letter was filed within 60 days of the August 2013 decision. The Board notes that the September 2013 letter expressed dissatisfaction with the termination of apportionment benefits, as discussed in the August 2013 Special Apportionment Decision. Thus, it should have been construed as a notice of disagreement. The tone of the letter indicates dissatisfaction with regard to the termination of apportionment benefits as shown by the appellant’s indication that if the appeal regarding the validity of her marriage was not granted that would be the right time for the VA to terminate the apportionment on her behalf, but that the apportionment for their dependent child should not be terminated. She noted their daughter was the Veteran’s only minor child and indicated she should continue to receive benefits whether or not the appellant’s marriage to the Veteran was valid. She concluded with a request for consideration of her appeal on the matter. Read in the context of the August 2013 decision, the tenor of the appellant’s statement is consistent with the regulatory requirements of what constitutes a notice of disagreement. The letter clearly expresses dissatisfaction with the RO’s decision regarding the termination of apportionment benefits due to the documents submitted by the Veteran regarding the nullity of their marriage and a desire to contest the result. The Board also points out that this is consistent with the other letters submitted by the appellant. A review of the record reveals that the appellant sent several letters to the RO expressing her dissatisfaction concerning her termination of apportionment benefits. Thereby, substantiating her desire to continuously prosecute her claim regarding the propriety of the termination of her apportionment benefits. In any event, in this case, the actual wording and context of the September 17, 2013, letter leaves no doubt that the appellant was seeking to challenge the RO’s termination of her apportionment benefits. See Jarvis v. West, 12 Vet. App. 559 (1999) (the Court looks to both actual wording of the communication and the context in which it was written to determine whether a document is an NOD). Additionally, as previously mentioned, special wording for a notice of disagreement is not required; the notice of disagreement only must be in terms which can reasonably be construed as disagreement with that determination and a desire to contest the result. 38 U.S.C. § 7105; 38 C.F.R. § 20.201. The appellant accomplished such in the letter received in September 2013. Thus, the Board finds that a timely notice of disagreement with the August 13, 2013, Special Apportionment Decision was received. REASONS FOR REMAND As noted previously, the appellant’s notice of disagreement has been considered timely, and the propriety of the termination of the appellant’s apportionment benefits is being remanded for further development. The matters are REMANDED for the following action: 1. Take all required procedural actions deemed necessary to consider the propriety of the termination of the appellant’s apportionment benefits. 2. Thereafter, if in order, issue a Statement of the Case (SOC) including the issue of the propriety of the termination of the appellant’s apportionment benefits. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kelly A. Gastoukian 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.