Citation Nr: 21012125 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-38 136 DATE: March 3, 2021 REMANDED The issue of entitlement to an apportionment of the Veteran’s VA compensation benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1999 to January 2006. The appellant is the mother of the parties’ minor child. This appeal comes before the Board of Veterans’ Appeals (Board) from a December 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied the appellant’s claim for an apportionment of the Veteran’s VA disability benefits on behalf of the parties’ minor child. In September 2020, the appellant, the minor child, and two witnesses testified during a Board hearing before the undersigned Veterans Law Judge. In December 2020, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are included in the claims file. The issue of entitlement to an apportionment of the Veteran’s VA compensation benefits 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. This case involves a simultaneously contested claim. Therefore, the provisions of 38 U.S.C. § 7105A are applicable. Cases involving simultaneously contested claims are also subject to special procedural regulations. See 38 C.F.R. §§ 19.100, 19.101, 19.102, 20.500, 20.501, 20.502, 20.503, 20.504 (2020). Specifically, 38 C.F.R. § 19.100 provides that, in a simultaneously contested claim, all interested parties are to be notified of the action taken by the AOJ and of the right and time limit for initiating an appeal, as well as notification of the right to a hearing and representation. Upon the filing of a notice of disagreement, all interested parties will be furnished a copy of the SOC. 38 C.F.R. § 19.101. When a substantive appeal is filed, the content will be furnished to the other contesting parties to the extent that it contains information which 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 appellant, who is the non-prevailing party before the RO, contends that she is entitled to an apportionment of the Veteran’s VA disability benefits for their minor son. The Veteran was the prevailing party, as the claim for an apportionment of his benefits to the appellant was denied. A close review of the claims file reveals that VA has not fulfilled its obligations under the procedures relating to contested claims. Specifically, there is no indication in the claims file that the Veteran was provided with a copy of the content of the appellant’s July 2017 substantive appeal or the September 2020 Board hearing transcript. Additionally, the record reflects that the appellant has not been provided with a copy of the December 2020 Board hearing transcript. Accordingly, the Board finds that a remand is necessary in order to ensure full compliance with the contested claims procedures pursuant to 38 C.F.R. §§ 19.100-02, 20.500-04, to include providing the parties with these outstanding documents. The Board further notes that the Veteran was previously ordered to pay child support to the appellant for the care of their minor son. Indeed, the appellant has submitted evidence regarding the Veteran’s intermittent payment history and the accruing arrearage amount. However, the Veteran has also submitted evidence and provided testimony reflecting that his wages were garnished for periods of time due to an income withholding order. He further testified that his annual income tax refunds have been garnished in repayment of the child support obligation. The record does not contain documentation of any related income withholding orders, nor does it contain a complete history of the child support payments made by the Veteran, to include those involving the garnishment of his wages and tax refunds. The Board finds that additional information regarding the complete child support payment history, as well as court orders related to the garnishment of the Veteran’s wages and tax refunds would be helpful in adjudicating this matter. Thus, on remand, the RO must attempt to obtain any available income withholding orders, as well as comprehensive reports of the Veteran’s child support obligations and payments from all courts of appropriate jurisdiction in New Hampshire and Texas, the State of New Hampshire Division of Child Support Services, and the State of Texas Child Support Division. The parties are also advised to provide copies of all child support records in their possession, to include any related income withholding orders, payment history documents, or proof of payments made by the Veteran to the appellant via wage or tax refund garnishment. Additionally, it is unclear as to whether the appellant is currently receiving any benefits on behalf of the minor child from the Veteran’s Social Security Administration benefits, if any have been awarded. As such, a remand is warranted in order to obtain more detailed information regarding whether the Veteran is receiving a benefit from SSA, as well as whether a portion of these benefits has been awarded to the appellant on behalf of the parties’ minor child. The matter is REMANDED for the following action: 1. The RO should ensure full compliance with the contested claims procedures outlined in 38 C.F.R. §§ 19.100-02, 20.500-04. Specifically, ensure that the Veteran is provided with copies of the content of the appellant’s July 2017 substantive appeal and the September 2020 Board hearing transcript. The appellant must be provided with a copy of December 2020 Board hearing transcript. 2. Send both parties a letter requesting identifying information and authorizations needed to obtain any income withholding orders and comprehensive reports of the Veteran’s child support obligations and payments from all courts of appropriate jurisdiction in New Hampshire and Texas, the State of New Hampshire Division of Child Support Services, and the State of Texas Child Support Division. 3. The AOJ should then proceed to obtain the aforementioned related court orders and comprehensive reports of child support payments in an attempt to verify the Veteran’s allegation that his wages and income tax refunds have been garnished. 4. Request that both parties provide copies of all child support records in their possession, to include any related income withholding orders, payment history documents, or proof of payments made by the Veteran to the appellant via wage or tax refund garnishment. 5. Request from SSA a determination regarding whether the Veteran has been awarded SSA benefits. The SSA should be requested to clarify whether any portion of the Veteran’s SSA benefits, if awarded, have been paid out to the appellant, on behalf of the minor child. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Erin J. Trojanowski, Associate 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.