Citation Nr: 22018964 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 13-12 606 DATE: March 30, 2022 ORDER The appeal as to entitlement to an apportionment of the Veteran's VA compensation benefits during a period of incarceration is dismissed. FINDING OF FACT The record reflects the Veteran died in August 2020. 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 1967 to October 1968. The Veteran died in August 2020, during the pendency of the appeal. The appellant and the Veteran married in July 2003, and divorced on June 2, 2017. The appellant is not entitled to an apportionment of the Veteran's VA benefits as his spouse effective the date of divorce. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This matter was remanded by the Board in August 2017. It now returns for appellate review. 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 notified a Board hearing was scheduled on February 4, 2022, in correspondence dated November 23, 2021. Additionally, an informal hearing presentation was not obtained from the Veteran's representative. 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 benefits during a period of incarceration 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, 82 (2000). In this regard, apportionment is paid out of a share of the benefits for the Veteran. As a result of the Veteran's death in August 2020, no payments are currently being made to the Veteran. Moreover, even if the criteria were met for apportionment prior to the Veteran's death and prior to the parties' divorce, there is no longer any benefit being paid that can be subject to apportionment. In this regard, the appellant filed an informal claim for apportionment, received by VA on January 10, 2012, based on the Veteran's incarceration. The February 2012 apportionment decision at issue denied the claim based on a finding the Veteran had been arrested but had not been convicted of a felony. However, the Veteran's VA compensation benefits were retroactively reduced due to his incarceration, pursuant to 38 U.S.C. § 5313 and 38 C.F.R. § 3.665, as reflected in February 1, 2017 correspondence. This retroactive reduction was effective June 23, 2012, which resulted in an overpayment. Indeed, October 2020 correspondence notified the representative of the Veteran's estate that Veteran's current debt owed to VA was $148,531.85. There is no indication that VA has recouped any of this debt. The Board recognizes that typically, an incarcerated Veteran does not have a personal stake in the outcome of an apportionment claim. Belton v. Principi, 17 Vet. App. 209, 211 (2003). However, in this case the Board finds the Veteran would have been adversely affected by the grant of an apportionment award as he had personal a personal stake in any reduction in his compensation payments, as he had received unreduced compensation payments during the majority of the appeal period at issue and accrued a corresponding debt. Thus, 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 (and instead reflects the Veteran's estate owes VA a sizeable debt), 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.