BVA9500489 
DOCKET NO.  93-05 553     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico

THE ISSUE

Whether the appellant is entitled to an apportionment of the
veteran's disability compensation benefits on behalf of herself
and his children.

ATTORNEY FOR THE BOARD

Milo H. Hawley, Counsel

REMAND

The veteran had active service from October 1948 to December
1952.

This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a June 1991 special apportionment decision by the
Department of Veterans Affairs (VA) Regional Office in San Juan,
Puerto Rico (RO).

The appellant filed her claim for an apportionment of the
veteran's benefits in March 1991.  At that time she indicated
that she and the veteran had separated in September 1989.  She
reported monthly income of $300 from a part-time job and $300
support from the veteran.  She indicated that she had total
monthly expenses of $871.

A June 1991 special apportionment decision denied an
apportionment on the basis that the veteran was providing for his
dependents in the amount of $300 per month.  However, a divorce
decree of September 1991 indicates that child support of $430 per
month was to be paid by the veteran.  38 C.F.R. § 3.450(c)
(1993).  38 C.F.R. § 3.451 (1993) provides that "without regard
to any other provision regarding apportionment where hardship is
shown to exist," compensation may be specially apportioned
between a veteran and his dependents as long as it does not cause
the veteran hardship.  The RO has not considered the effect of a
divorce or the possible emancipation of Javier and Noel on the
appellant's apportionment claim.

In her June 1991 notice of disagreement, the appellant indicated
that the veteran was contributing $300 per month for one of the
children.  Other evidence of record reflects that the other
child, who was born in 1969, was attending school.  The record
does not reflect who was paying for that school, nor does the
record reflect what the veteran's income and expenses were.
While the veteran was advised that the appellant had filed her
substantive appeal, he was not provided a statement of the case
until after he had directed a letter of inquiry to the Board.
That letter indicates that he had changed addresses more than
once, and there is some question as to what notice he had
received.  The VA Form 1-8 indicates that contested claims
procedures are not applicable in this case.  Since a favorable
decision with regard to the appellant's appeal could adversely
affect the veteran, such procedures are applicable, and should be
accomplished before further appellate review.  38 C.F.R.
§§ 19.100-102, 20.500-504.  Therefore, the case is REMANDED to
the RO for the following:

1.  Contested claims procedures should be
implemented with respect to the appellant's
appeal.  In part, the veteran should be
informed of the substance of the
appellant's appeal and allowed the
appropriate time for filing a brief or
argument in answer.

2.  The veteran should be requested to
provide a report of his income and expenses
in 1991.  Further income and expense
information as deemed necessary should also
be obtained from both claimants.

3.  The RO should then re-adjudicate the
apportionment claim from its inception,
considering all pertinent laws and
regulations.

4.  The appellant and the veteran should
then be provided with a supplemental
statement of the case and be afforded the
appropriate time for response.  In the
statement of the case the RO should discuss
the effect of the September 1991 divorce
decree and the apparent emancipation of
Javier and Noel upon the veteran's
liability for an apportionment to the
appellant.

If in order, the case should then be returned to the Board for
further appellate review.  The purposes of this remand are to
procure clarifying data and accord due process to all parties.
The Board intimates no opinion as to the ultimate determination
warranted pending completion of the appeal.  No action is
required by either party unless they receive further notice.

          ROBERT D. PHILIPP
          Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  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) (1993).