Citation Nr: 25004752 Decision Date: 04/08/25 Archive Date: 04/08/25 DOCKET NO. 10-49 773 DATE: April 8, 2025 ORDER The Veteran's appeal to terminate the apportionment awarded to his daughter, RDO, in the amount of $160.00 per month from December 1, 2008, to September 1, 2012, is denied. FINDINGS OF FACT 1. The claimant/appellee is the Veteran's adult daughter, [REDACTED] (RDO), who turned age 23 in April 2013. 2. By May 2022, October 2022, and recently November 2023 letters, the Veteran was asked to provide information necessary to adjudicate his claim. Specifically, the Veteran was requested to submit any records of child support and arrearage payments made to RDO during the appeal period from December 2008 to September 2012 (during the daughter's time in undergraduate school), to include any payment history documentation; more than a year has lapsed since the request, and neither the Veteran nor his representative submitted the requested evidence. CONCLUSION OF LAW By failing to submit requesting information and/or forms for critical evidence needed to properly adjudicate his appeal, the Veteran has abandoned his appeal, and thereby this must also be considered abandoned. 38 U.S.C. §§ 5107, 7105(d)(5); 38 C.F.R. § 3.158(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, served on active duty in the United States Navy from October 1987 to October 2007. The claimant/appellee is the Veteran's adult daughter, [REDACTED] (RDO). This matter originates from an appeal of an August 2009 apportionment decision and has a lengthy procedural history outlined below. This matter was remanded by Board in May 2014, January 2017, March 2022 and most recently in March 2023 for additional evidentiary development. Issue: The Veteran's appeal to terminate the apportionment awarded to his then-dependent daughter, RO, in the amount of $160.00 per month from December 1, 2008, to September 1, 2012. As will be explained below, the Board observes that VA's duty to assist has been frustrated in this case by the Veteran's failure to participate in the development of his appeal. Specifically, if the Veteran disagreed with the apportionment granted to his daughter, he must at least fulfill his minimal obligation of submitting the requested information critical to the resolution of his appeal. By way of history, the Veteran's then college-age daughter originally sought apportionment of the Veteran's VA benefits for herself when she as over the age of 18 but enrolled in college. See VA Form 21-0788, Information Regarding Apportionment of Beneficiary's Award, dated November 2008. By August 2009 apportionment decision, VA awarded an apportionment to claimant RDO in the amount of $148.00 per month starting December 1, 2008, the first of the month following the date the apportionment claim was received; and increased to $160.00 per month beginning August 1, 2009. See August 2009 Notification Letter. RDO was awarded apportionment from December 2008 to September 2012 (during her time in undergraduate school). She was over the age of 18 for the duration of this time but was a fulltime student in an undergraduate program at Hampton University in Virginia. Notably, when the apportionment decision was made, the Veteran's benefits were increased so that an additional dependent was on his award, with $160.00 in monthly apportionment being paid directly to RDO. In August 2009, the Veteran disagreed with the apportionment and initiated an appeal under the legacy system. See Notice of Disagreement (NOD) received August 2009. The Veteran argued he paid child support for RDO to his former spouse during the time of her schooling. However, the specific amount of child support paid during RDO's schooling is unclear at this time as the Veteran has not provided payment history documentation showing he supported RDO. To specifically address this question, the Board remanded the matter in May 2014, January 2017, March 2022 and most recently in March 2023 for additional evidentiary development. The Board's prior remand instructed the AOJ to request "both parties provide any records of child support and arrearage payments made to the appellee by the Veteran during the appeal period (December 2008 to September 2012), to include any related court orders, payment history documentation, or proof of payments." See Board Remands of January 2017, March 2022 and March 2023. In compliance with the Board's remand directives, notifications were sent in May 2022, October 2022, and recently in November 2023 letters. Specifically, the Veteran was asked to complete and return the enclosed VA Form 21-0788, Information Regarding Apportionment of Beneficiary's Award as well as provide any documentation of support or evidence that he is contributing to the support of RDO. See Notification Letters dated May 2022, October 2022, and November 2023. The notification letters also requested he provide any records of child support and arrearage payments made to the appellee RDO by the Veteran or to Lashorn R. Owens during the appeal period on appeal from December 2008 to September 2012, to include any related court orders, payment history documentation, or proof of payments. Id. The record does not indicate any correspondence was returned undelivered. Accordingly, there has been substantial compliance with the Board's prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). Critically, more than a year has lapsed since the request, and neither the Veteran nor his representative submitted the requested evidence and information. The facts at this stage are clear. The Veteran has not provided the information or documentation necessary for VA to adjudicate his appeal, and particularly since the most recent March 2023 Board remand. VA's duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). A veteran must cooperate when he is asked for information that is essential in obtaining the evidence to substantiate his claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Additionally, when evidence requested in connection with an original claim or a claim for increase is not furnished within a year of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a). Accordingly, the Board is presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate. In such circumstances, proper adjudication on the merits is not possible. The governing regulation in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous, and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the regional office (RO) requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158 ); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned). Notably, the Court has held that even if an appellate is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). As demonstrated above, the Veteran has specifically been asked multiple times to submit financial information and he neglected to submit any evidence in response to the AOJ's request for information. The Veteran's appeal to terminate the apportionment awarded to his daughter, RDO, in the amount of $160.00 per month from December 1, 2008, to September 1, 2012, is denied. Hence, the Board has no recourse but to conclude that because of his failure to cooperate, the Veteran has abandoned his claim. As such, the Board finds that the appeal must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.A., 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.