Citation Nr: 0006523 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-13 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an increased apportioned share of the veteran's VA compensation benefits, on behalf of his minor children. REPRESENTATION Appellant represented by: Jubal L. Miller, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael A. Holincheck, Associate Counsel INTRODUCTION The veteran served on active duty from September 1989 to February 1993. The appellant is his former spouse and the custodian of his minor children. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1997 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Board notes that the appellant presented testimony at a video conference hearing before the undersigned in January 2000. At the hearing, the appellant submitted additional evidence, along with a waiver of consideration by the agency of original jurisdiction. However, as the case is to be remanded for further development, the evidence submitted at the hearing will be considered by the RO. REMAND At the outset, the Board notes that the appellant's claim is well grounded, as she is seeking an increased amount for her previously awarded apportionment. However, as will be discussed below, additional development is required. The Board notes that applicable law provides that a veteran's compensation may be specially apportioned if hardship is shown to exist on the part of the veteran's dependents as long as such apportionment would not cause undue hardship to the veteran. 38 C.F.R. § 3.451 (1999). Furthermore, in determining the rate of apportionment, consideration will be given to such factors as the amount of VA benefits payable, other resources and income of the veteran and the dependents on whose behalf apportionment is claimed; and special needs of the veteran, his dependents, and the apportionment claimants. 38 C.F.R. §§ 3.451, 3.452, 3.453 (1999). Ordinarily, apportionment of more than 50 percent of the veteran's benefits would constitute undue hardship on him or her, while apportionment of less than 20 percent of the veteran's benefits would not provide a reasonable amount for any apportionee. 38 C.F.R. § 3.451 (1999). The veteran is currently service connected for seizure disorder and residuals from heat stroke. His seizure disorder is rated as 100 percent disabling and has been at that rate, effective from September 1, 1994. The total rating was declared permanent in nature in a July 1999 Rating Decision. The appellant originally sought an apportionment of the veteran's VA disability compensation in September 1995. At the time, the appellant indicated that she and the veteran were separated and pending a divorce. The divorce became final in October 1995. In November 1995, the veteran's attorney, on behalf of the appellant, submitted a copy of the decree and requested that child support in the amount of $600 per month and alimony payments of $200 per month be withheld from the veteran's VA compensation. By way of a letter dated in January 1996, the appellant and her attorney were advised that 38 U.S.C.A. § 5301 (West 1991 & Supp 1999) prohibits such action. The letter further advised that an apportionment request was being processed. As part of the development for the apportionment claim, the appellant submitted information regarding her monthly income and expenses. In a Report of Contact, dated in January 1996, she also related that she had received $11,000 from the veteran out of a $23,000 VA check for retroactive benefits. The appellant's request for apportionment was denied in January 1996. The RO cited the $11,000 payment as proof of support of his dependents and that it satisfied the veteran's $800 per month obligation for a 13 3/4 month period. The appellant's attorney submitted a letter that was received in April 1996, that stated the $11,000 should be not considered as support payments. Rather, the $11,000 represented a payment pursuant to a property settlement agreement between the appellant and the veteran. However, a copy of the property settlement agreement was not provided. The appellant has asserted that her financial situation is such that she needs at least the $600 per month payment awarded in her divorce in order to survive financially. She has attempted to secure payment of the award through the Kentucky Child Support system but has been unsuccessful to this point. Accordingly, she has sought financial assistance through apportionment. The appellant reopened her claim in April 1997. By way of a June 1997 administrative decision, she was awarded an apportionment for her two children in the amount of $136 per month. This amount reflected the additional compensation due the veteran for two dependent children. The appellant has appealed the amount of the apportionment. The veteran has not responded to any correspondence in the matter, either to provide information on his economic status or to dispute any of the RO's actions. As part of her appeal, the appellant, and the veteran, were provided a statement of the case (SOC) in July 1998. The appellant then perfected her appeal in August 1998. However, the veteran was not provided notification of this action as required by 38 U.S.C.A. § 7105A(b) and 38 C.F.R. § 20.502 (1999). Further, the appellant requested that she be afforded a Board hearing as part of her appeal. She was then scheduled for her hearing and notified of the action by way of a letter dated in December 1999. However, the veteran was not provided notification of the hearing and of his right to be present and to present evidence on his behalf. 38 C.F.R. § 20.713(a) (1999). Finally, the appellant has testified as to the amount past due from the veteran for his child support. She has also submitted a statement from a Madison County, Kentucky, caseworker detailing a past due amount, as well as a copy of an arrest warrant listing a different amount due. A detailed summary of payments received and payments due would be very beneficial to VA in adjudicating the appellant's claim. Therefore, in order to ensure that due process procedures have been complied with and to obtain a record which is complete enough for an equitable decision in this matter, the case is REMANDED for the following actions: 1. The RO should provide the veteran with a copy of the appellant's substantive appeal. The RO should also solicit additional information from him as to his current financial status, including his current income, expenses and assets. He is to be told of the importance of including all income from every source. The veteran should also be asked to submit evidence regarding any agreements entered into with the appellant regarding child support, how much support he has actually provided to the appellant and his children since 1995, and he should indicate if he is represented. Supporting evidence of prior actual child support payments could and should include canceled checks. The veteran is advised that his failure to provide requested information may result in the awarding of up to 50 percent of his compensation if the other evidence of record otherwise supports such a decision. 2. The veteran should also be offered the opportunity for a hearing in this case. He should be contacted and requested to indicate his desires as to whether or not he wants a hearing. A copy of the transcript from the appellant's January 2000 video conference hearing should be provided to him and he should be given an appropriate period of time to submit comments or evidence in rebuttal. The veteran may also request a personal hearing. 3. The RO should request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers, VA and private, who may possess treatment records for the veteran after November 1997. After securing any necessary authorization from the veteran, the RO should attempt to obtain copies of those treatment records identified which have not been previously secured. The Board is specifically interested in obtaining recent treatment records that address the veteran's physical status. 4. While the appellant has been helpful in the past in providing income related information, she should be requested to provide an up-to-date income/expense statement that lists all sources and amounts of income, to include monies relied upon from student loans or grants, and all sources and amounts of expenses, to include student loan debt and expected date to begin repayment. The appellant should also be requested to provide a detailed summary of all of the support payments provided by the veteran. Further, the appellant should provide a copy of the written property settlement agreement which allegedly granted her $11,000. Finally, the appellant should present a summary of the exact amount of back support owed by the veteran from an official source such as the County Child Support office or from the court. The appellant should be advised that this information is essential to a fair adjudication of her claim. 5. The RO should review the claims file and determine whether the appellant is entitled to an increase in the apportioned share of the veteran's disability compensation on behalf of the minor children. Any decision regarding apportionment should include a discussion of why less than a 20 percent apportionment would be justified. 6. The RO should issue to both parties, and their representatives, as appropriate, a supplemental statement of the case with all pertinent laws and regulations, including 38 U.S.C.A. §§ 5307 and 7105A, and 38 C.F.R. §§ 3.450, 3.451, 3.452, and advise them of the appropriate time limit to submit any additional comments or evidence. The purpose of this remand is to ensure that a complete and accurate record exists in order to properly determine whether an increased apportionment of the veteran's compensation on behalf of the minor children is warranted in this case, and for due process considerations. The Board intimates no opinion as to the eventual determination to be made. The appellant and the veteran have the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. DEREK R. BROWN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).