Citation Nr: 21040614
Decision Date: 07/06/21	Archive Date: 07/06/21

DOCKET NO. 16-48 127
DATE: July 6, 2021

REMANDED

Propriety of the grant of an apportionment of the Veteran's VA disability benefits to the appellee on behalf of the Veteran's daughter, S.C., is remanded.

REASONS FOR REMAND

The Veteran served on active duty from July 2003 to May 2009. The appellee is the Veteran's former spouse and mother of the Veteran's daughter, S.C.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2013 decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019 and December 2020, the Board remanded the matter for further development.

1. Propriety of the grant of an apportionment of the Veteran's VA disability benefits to the appellee on behalf of the Veteran's daughter, S.C., 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 there are outstanding issues regarding the physical custody of S.C. and the parties' income and expenses that need to be resolved.

First, the Board notes that a veteran's benefits may be apportioned if the veteran is not residing with his or her spouse or his or her children and a claim for apportionment is filed for or on behalf of the spouse or children. 38 C.F.R. § 3.452. Both the Veteran and the appellee have indicated that for a portion of the appeal period the Veteran had primary physical custody of S.C.; however, the dates the Veteran had primary physical custody are not clear. Thus, the Board finds that, on remand, the AOJ should request information from the parties regarding the approximate dates (month(s) and year(s)) when S.C. was in the primary physical custody of the Veteran.

Additionally, the Board notes that the appellee has provided evidence that the Veteran made child support payments inconsistently and had not made child support payments since October 2013. However, the Veteran has stated that payment of court ordered child support payments along with the awarded apportionment created a financial hardship. Therefore, on remand, the parties should be asked to provide information regarding any child support and arrearage payments made by the Veteran to the appellant. The RO should also attempt to verify such information through other available means.

Further, the Board notes that the most recent income and expense information was submitted several years ago. On remand, the parties are advised to provide updated information regarding their income and expenses throughout the appeal period.

The matters are REMANDED for the following action:

1. Request a written statement from the parties addressing the custody and/or living arrangement for S.C. from approximately April 2012 to the present. The parties should also be asked to provide supporting documentation/evidence.

2. Request that both parties provide any records of child support and arrearage payments made to the appellee by the Veteran, to include any related court orders, payment history documentation, or proof of payments.

3. Attempt to obtain information regarding child support payments from the California Department of Child Support Services. If necessary, obtain a release from the parties to obtain the information.

4. Furnish VA Forms 21-0788 (Information Regarding Apportionment of Beneficiary's Award) to the appellee and the Veteran and request that they complete the forms for the periods from April 2012 to the June 2020, indicating their income and expenses.

Advise that failure to provide the requested financial statements could result in an adverse decision in this matter.

5. Thereafter, readjudicate the claim on appeal.

 

 

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.