Citation Nr: 22018203 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-05 474 DATE: March 28, 2022 ORDER The appeal as to entitlement to an apportionment of the Veteran's Department of Veterans Affairs (VA) compensation benefits is dismissed. FINDING OF FACT The record reflects the Veteran died in November 2012. CONCLUSION OF LAW The appeal as to an apportionment of the Veteran's VA benefits has become moot by virtue of the death of the Veteran and must be dismissed. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1977 to September 1981. The Veteran died in November 2012, during the pendency of the appeal. The appellant, H.L., is the daughter of the Veteran. By way of background, an October 1994 decision granted apportionment of the Veteran's VA compensation benefits to the appellant's mother, on behalf her mother, and three children, including the appellant. Thereafter, in December 2010, the appellant submitted a VA Form 21-674, Request for Approval of School Attendance. The apportionment awarded to the appellant's mother on behalf of the appellant terminated when the appellant turned 18, in January 2011. Following the termination of the apportionment, in September 2011, the appellant submitted another VA Form 21-674 as well as an informal claim for an apportionment of the Veteran's VA compensation benefits, essentially asserting she qualified for apportionment for the period of time after reaching the age of 18 years (but not after reaching the age of 23 years) as she was pursuing a course of instruction at an approved educational institution. 38 C.F.R. § 3.57. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 decision of the VA Regional Office (RO). The September 2012 decision denied entitlement to an apportionment of the Veteran's VA compensation benefits to the appellant. The appellant timely filed a notice of disagreement. In August 2016, the RO issued a Statement of the Case (SOC) which continued to deny the appellant an apportionment. The SOC was resent to the appellant on October 31, 2016. Thereafter, VA received the appellant's VA Form 9, Appeal to Board of Veterans' Appeals, on December 27, 2016, 57 days after the SOC was resent to her. Apportionment decisions are simultaneously contested claims. 38 C.F.R. § 20.502 provides 30 days to submit a substantive appeal in simultaneously contested claims. Accordingly, the appellant's VA Form 9, was not timely. The Board also acknowledges a letter notifying the appellant that this appeal was placed on the Board's docket is not of record, nor did the appellant appear to testify at her requested Board hearing (or provide good cause for her failure to report), although she was most recently notified a Board hearing was scheduled on February 18, 2022, in correspondence dated November 17, 2021. Additionally, informal hearing presentations were received from the Veteran's representative in August 2019 and March 2022 but advocated on behalf of the appellant. However, no further action is required as to these issues, or any other due process deficiency, if such exists, given that this case is being dismissed due to the death of the Veteran. 1. Entitlement to an apportionment of the Veteran's VA compensation benefits An appellant becomes ineligible for apportionment of compensation at the time of the Veteran's death and apportionment issues are moot. See Marrero v. Gober, 14 Vet. App. 80 (2000). This is because apportionment is paid out of a share of the benefits paid to a veteran. As a result of the Veteran's death in November 2012, no payments are currently being made to him. Even if the criteria were met for apportionment prior to the Veteran's death, there is no longer any benefit being paid that can be subject to apportionment. To the extent that an apportionment is requested out of the money paid to the Veteran prior to his death, that money would be controlled by the Veteran's estate, over which VA does not have jurisdiction. See also Scott v. Shulkin, Memorandum Decision No. 15-3579 (May 4, 2017). Because there is no benefit payable by VA, the appellant's claim for an apportionment of the Veteran's VA benefits has become moot by virtue of the death of the Veteran and must be dismissed. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.