Citation Nr: 22016575
Decision Date: 03/22/22	Archive Date: 03/22/22

DOCKET NO. 19-16 881
DATE: March 22, 2022

REMANDED

Entitlement to an apportionment of the Veteran's VA compensation benefits is remanded.

REASONS FOR REMAND

The Veteran had active service from May 1994 to August 1994 and from June 2004 to August 2005. The appellant is the mother and custodian of the Veteran's child, K.L.

This matter comes before the Board of Veterans' Affairs (Board) on appeal from a May 2017 decision by a department of Veterans Affairs (VA) Regional Office (RO).

1. Entitlement to an apportionment of the Veteran's VA compensation benefits is remanded.

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.

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 statement of the case (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.

In this case, there has not been full compliance with these procedures. Specifically, the record does not reflect that the Veteran was provided the content of the appellant's May 2019 substantive appeal. Further, the appellant requested a Board hearing in her May 2019 substantive appeal. In June 2021, the VA sent correspondence to only the Veteran that a videoconference hearing before the Board had been scheduled for August 2021. The appellant was never notified the hearing had been scheduled. Accordingly, a remand is necessary to provide the Veteran a copy of the May 2019 substantive appeal and to then reschedule a hearing in compliance with the contested claims procedures.

The appellant last submitted documents regarding her financial status in December 2015. In November 2016, the Veteran last submitted a VA Form 21-0788 (Information Regarding Apportionment of Beneficiary's Award) detailing his income and expenses. Given the lapse since the last financial status reports, the Board finds that the completion of an additional VA Form 21-0788 for both the appellant and the Veteran would be helpful in resolving the issue on appeal.

The matters are REMANDED for the following action:

1. 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 the content of the appellant's May 2019 substantive appeal.

2. Furnish VA Forms 21-0788 (Information Regarding Apportionment of Beneficiary's Award) to the appellant and the Veteran and request that they complete the form. 

Advise each party that failure to provide the requested financial statements could result in an adverse decision for him or her in this matter.

3. Readjudicate the claim on appeal.

4. After the development directed above has been completed to the extent possible, return the matter to the Board for the scheduling of a hearing

 

 

MARJORIE A. AUER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Gastoukian, Kelly

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.