Citation Nr: 22018206 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 20-15 301A DATE: March 28, 2022 REMANDED The issue of whether the amount of $862.00 per month, of the Veteran's VA disability compensation benefits awarded to the appellant, on behalf of herself, and the children, J.F., and N.F., is proper, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1997 to February 2006. The parties have not disputed that the appellant is the Veteran's estranged spouse and the mother of the parties' children, J.F. and N.F. The record reflects N.F. turned 18 during the pendency of the claim. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 apportionment decision of the Department of Veterans Affairs (VA) Regional Office (RO). The July 2017 decision awarded apportionment of the Veteran's compensation benefits, in the amount $225.00 per month on behalf of the Veteran's estranged spouse and children, N.F. and J.F. ($75.00 per month for each person), effective from February 1, 2015. The appellant appealed for an increased amount of apportionment. However, during the pendency of the appellant's appeal for an increased amount of apportionment, February 2020 Statements of the Case issued to each party, awarded an increased amount of apportionment, specifically $862.00 per month, effective February 1, 2015. The increase of apportionment was effectuated in an April 2020 apportionment decision issued that same month. Thus, as this increased apportionment was effectuated in an April 2020 apportionment decision, the Board will find the appellant's April 2020 VA Form 9, Appeal to Board of Veteran' Appeals, is timely. 38 C.F.R. § 20.502 (b). Further, the record also reflects, in May 2020, the Veteran timely submitted VA Form 10182, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), for review the claim in the modernized review system created by the Appeals Modernization Act (AMA). However, the Board cannot accept the request at this time because April 2020 apportionment decision implemented a partial grant of the amount of apportionment awarded, and the issue remained pending in the legacy (non-modernized) system. Further, each party was notified of the claim would remain in the legacy system in VA correspondence dated December 21, 2021. Following the February 2020 Statements of the Case issued to each party, the record reflects additional financial information, was submitted by both the appellant and Veteran. Neither the appellant nor the Veteran waived initial consideration of this evidence by the Agency of Original Jurisdiction (AOJ). 38 C.F.R. § 20.1304 (d). In this regard, contested claims are governed by 38 U.S.C. § 7105A, rather than 38 U.S.C. § 7105, so presumptive waiver provisions of 38 U.S.C. § 7105(e) do not apply. However, as the issue herein must be remanded for additional development for other matters, there is no prejudice to either party in this regard. As a final preliminary matter, a November 2019 Report of General Information, documented, in part, that the appellant requested a Veterans Service Organization (VSO) contact her to discuss the appeal. However, the appellant is advised that VA cannot direct a VSO to contact her or represent her. Further, a February 2020 Report of General Information documented, in part, the appellant was advised as to what a VSO was and that she should contact the local office to see who was available in her area. Also, in a January 2022 statement, the appellant stated, in part, "I don't remember consenting to representing myself." In this regard, if the appellant seeks representation, she is invited to contact the local VA office, as previously advised, or to review the information on the VA's website, including at https://www.benefits.va.gov/vso/, to inform herself as to how to appoint a representative (other than The American Legion as the Veteran is represented by this Veterans Service Organization), if she desires to do so. The issue of whether the amount of $862.00 per month, of the Veteran's VA disability compensation benefits awarded to the appellant, on behalf of herself, and the children, J.F., and N.F., is proper, 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. Cases involving simultaneously contested claims are subject to special procedural regulations. See 38 C.F.R. §§ 38C.F.R. §§ 19.100-02, 20.500-04. Specifically, pursuant to 38 C.F.R. § 19.102, when a substantive appeal is filed in a simultaneously contested claim, to the extent that the substantive appeal contains information that could directly affect the payment or potential payment of the benefit that is the subject of the contested claim, a copy of the content of the substantive appeal is to be furnished to the other contesting parties. Here, Veteran has not been provided with the content of the appellant's April 2020 substantive appeal. In light of the foregoing, the Board concludes that this case must be remanded in order to ensure that the specialized contested claims procedures have been followed. Additionally, a remand is required as there is incomplete financial information from each party. Although the appellant completed VA Forms 21-0788, Information Regarding Apportionment of Beneficiary Award, in January 2015, February 2016, she reported inconsistent information in these forms, for example, in January 2015, she reported $2,223.24 per month of gross wages from all employment; however, in February 2016, she reported no income from gross wages from all employment. Conversely, later in February 2016, she reported a range of $2,004.00 to $2,404.00 gross wages from all employment as well as a range of expenses. Thus, in July 2017, VA requested an updated form without ranges from the appellant. Thereafter, in a July 2017 VA Form 21-0788, the appellant provided financial information without ranges; however, her reported expenses are unclear. For example, the Board is unclear as to why the appellant reported a monthly expense of $180.00 for utilities for herself but also separate utility expenses of $100.00 each for each child. The Board also observes that she reported a combined monthly clothing expenses of $650.00 for herself and N.F. and J.F., which seems abnormally high. Further, in her VA Forms 21-0788 dated in January 2015, February 2016, and July 2017, she did not report she received any contributions from the Veteran on behalf of herself or her children. Similarly, most recently, in a January 2022 statement, the appellant reported, in part, the Veteran never had to pay any financial support because she always had two or three jobs. However, while the Veteran has not submitted a VA Form 21-0788, as requested in January 2016, February 2016 and February 2020 correspondence, he did provide a statement regarding his finances along with some documentation. Specifically, in a May 2020 statement, the Veteran reported, in part, he supported his children, specifically he paid health insurance of $648.00 per month, cell phone of $116.00 per month, an allowance $120.00 per month, and a payroll deduction for child support of $364.00 per month. Further, the Veteran submitted a May 2020 payroll stub reflecting a year to date garnishment in the amount of $1,162.12; however, the record does not reflect any specifics as to the purpose of the garnishment. Also, the Veteran submitted November 2019 and August 2020 documentation, reflecting he paid insurance, including medical insurance, with coverage for J.F., and N.F., which cost $667.82 per month, and $439.01 per month, respectively. Accordingly, as there is incomplete financial information from each party, each party should again be provided with the opportunity to submit income and expense information from the award of apportionment, effective February 1, 2015. Further, each party is advised that any supporting documentation would likely be probative as each party is alleging completely different facts. Additionally, the Board recognizes the record reflects that N.F. turned 18 during the pendency of the claim. However, the record is not clear as to whether N.F. is pursuing a course of instruction at an approved educational institution post high school. In this regard, a letter dated in January 2021, from N.F.'s high school, reported that N.F. would graduate high school in June 2021. In a February 2021 statement, the appellant reported N.F. was planning join the Army Reserve and attend college at South Carolina State. However, there no further information of record as to whether N.F. was/is pursuing a course of instruction at an approved educational institution after reaching the age of 18 years post high school. Accordingly, remand is warranted to notify the appellant of the requirements for a minor child to continue to receive an apportionment after the child turns 18 years old, and to obtain any necessary documentation from the appellant or other appropriate educational institution to assist in determining if N.F. was/is pursuing a course of instruction at an approved educational institution after reaching the age of 18 years post high school. Finally, following the specified development directed herein, the AOJ should readjudicate the claim with consideration of all additional evidence, and issue a Supplemental Statement of the Case (SSOC) and certification letter, to both parties. This matter is REMANDED for the following actions: 1. Ensure full compliance with the contested claims procedures outlined in 38C.F.R. §§19.100-02, 20.500-04. Specifically document in the record that the Veteran is provided with the content of the appellant's April 2020 substantive appeal. 2. Request both parties provide income and expense information for the entire appeal period, from February 1, 2015, to the present, to include any child support payments from the Veteran, received by the appellant on behalf of J.F., and/or N.F., along with any supporting documentation. 3. Notify the appellant of the requirements for a minor child to continue to receive an apportionment after the child turns 18 years post high school. Send the appellant all necessary forms, such as report of school attendance. 4. Obtain any necessary documentation from the appellant or other appropriate educational institution to assist in determining if N.F. was/is pursuing a course of instruction at an approved educational institution after reaching the age of 18 years (but not after reaching the age of 23 years). 5. Readjudicate the issue of whether the amount of $862.00 per month, of the Veteran's VA disability compensation benefits awarded to the appellant, on behalf of herself, and the children, J.F., and N.F., is proper, based on all the evidence of record. Then, issue a SSOC and certification letter, to both parties, in compliance with the procedures for simultaneously contested claims, and return the case to the Board, if otherwise in order. 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.