Citation Nr: 21020782 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 19-09 079A DATE: April 8, 2021 REMANDED Whether the award of an apportioned share of the Veteran's VA compensation benefits to his former spouse for the benefit of the minor children C.S. and C.S. was appropriate is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1999 to April 2008. E.M. is the Veteran’s former spouse and the mother of his children. This appeal comes before the Board of Veterans’ Appeals (Board) from a February 2019 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted an apportionment of the Veteran’s VA disability benefits to the appellant, in the amount of $575.00 per month. The Veteran appealed the propriety of the award. E.M. did not appeal the decision. In November 2020, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. However, E.M. was not notified of the hearing date, consequently the Board has not relied on, and cannot rely on, the testimony provided at that hearing. Whether the award of an apportioned share of the Veteran's VA compensation benefits to his former spouse for the benefit of the minor children C.S. and C.S. was appropriate 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 multiple VA beneficiaries and is referred to as a “simultaneously contested claim.” There are particular provisions of law that need to be considered and applied, such as the law found in United States Code at 38 U.S.C. § 7105A. Cases involving simultaneously contested claims are also subject to special procedural regulations contained in the United Stated Code of Federal Regulations or C.F.R. 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 VA 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 Veteran, who is the non-prevailing party, contends that an award of an apportionment of his VA disability benefits for their children should not have been awarded. The Veteran’s former spouse is the prevailing party, as an apportionment of his benefits was granted. Unfortunately, VA has not fulfilled its obligations under the procedures relating to contested claims. Specifically, there is no indication that the Veteran’s former spouse was provided with the content of the Veteran’s April 2019 substantive appeal nor was she notified of the November 2020 Board hearing. The Board further notes that the Veteran was previously ordered to pay child support to the appellant for the care of their children. Indeed, the Veteran has submitted some evidence regarding his payment history. However, the Board finds that any additional information regarding the child support payment history, or any relevant documents, would be helpful in adjudicating this matter. Thus, on remand, the parties are asked to provide updated child support records, to include any related court orders, payment history documents, or proof of payments made by the Veteran to the appellant. Additionally, it is unclear if the parties have informed VA of all of their income and expenses. Documents submitted by the Veteran show that he receives Social Security benefits and an annuity from his former employer. These documents also indicate that his former spouse receives some of these benefits either for herself or on behalf of the children. However, the VA 21-0788 ’s that she has submitted only reflect wages and do not indicate that she receives any Social Security or pension income. As such, both parties should submit updated VA 21-0788s that reflect all compensation and expenses during the period on appeal. Lastly, the Veteran has continuously contended that VA should not have granted the apportionment as the parties were going through mediation to determine child support. The Board notes that VA apportionment issues are independent of any state action. While support obligations or lack thereof may play a role in determining the appropriateness of an award of apportionment, what the parties agree to, or are ordered to, in the course of a civil procedure is not determinative of the outcome in apportionment claim. The matters are 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’s former spouse is provided with the content of the Veteran’s April 2019 substantive appeal. 2. Request that both parties provide any records of child support and arrearage payments made by the Veteran to his former spouse, to include any related court orders, payment history documentation, or proof of payments. 3. Request that both parties provide updated income and expense information. 4. Readjudicate the claim on appeal. 5. Thereafter, return the matter to the Board so it can schedule the Veteran and his former spouse, E.M., for a new hearing. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Uller, 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.