Citation Nr: 0006223 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 98-14 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to an apportioned share of the veteran's VA disability benefits, on behalf of [redacted] and [redacted], his minor children. REPRESENTATION Appellant represented by: None Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. J. Nottle, Counsel INTRODUCTION The veteran had active military service from March 1974 to March 1977. The appellant is the mother of two of the veteran's minor children. Her claim comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 1997 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the appellant's request, on behalf of the veteran's minor children, for an apportioned share of the veteran's VA benefits. REMAND A claim for an apportionment is a "contested claim" subject to special procedural regulations. Under 38 C.F.R. § 19.100 (1999), all interested parties are to be specifically notified of the action taken by the agency of original jurisdiction in a simultaneously contested claim and of the right and time limit for initiating an appeal, as well as hearing and representation rights. Under 38 C.F.R. § 19.101 (1999), upon the filing of a Notice of Disagreement in a simultaneously contested claim, all interested parties are to be furnished with a copy of the Statement of the Case. Pursuant to 38 C.F.R. § 19.102 (1999), when a Substantive Appeal is filed in a simultaneously contested claim, the content of the Substantive Appeal will be furnished to the other contesting parties to the extent that it contains information that could directly affect the payment or potential payment of the benefit which is the subject of the contested claim. See also 38 U.S.C.A. § 7105A (West 1991). The Board's review of the record discloses that the appellant first filed a claim for an apportioned share of the veteran's VA benefits, on behalf of the veteran's minor children, in February 1997. By letters dated March 1997, the RO acknowledged the appellant's claim and informed the veteran that the appellant had filed this claim. In May 1997, the RO again denied the appellant's claim. The appellant initiated an appeal of this denial in June 1997, and thereafter, the RO again acknowledged the appellant's action and informed the veteran of this action. As well, in September 1998, the RO issued a Statement of the Case to both the appellant and the veteran. In August 1998, the appellant filed a Substantive Appeal that listed numerous arguments in support of her apportionment claim. The RO did not send a copy of this document to the veteran and his representative, nor did it provide them with an opportunity to present argument on the allegations raised therein by the appellant. In fact, since the appellant filed the Substantive Appeal, the veteran's representative has not been given an opportunity to review the entire claims file and submit a final statement on the veteran's behalf. In addition, in a statement from the appellant dated in January 2000 in which she withdrew her request for a BVA hearing, she provided as a reason that the "Child Support Court ordered [the veteran] to pay child support payments." It is not clear whether the appellant intended this statement as a withdrawal of her appeal for an apportionment of the veteran's compensation benefits. As such, since the file is being returned to the RO for additional action, this matter should be clarified. In order to ensure that all due process requirements are met, and to give the parties sufficient consideration with respect to the present appeal, further development of this appeal is necessary. This claim is REMANDED to the RO for the following development: 1. The RO should contact the appellant and determine whether she desires to continue her appeal for an apportionment of the veteran's compensation benefits on behalf of the veteran's minor children in her custody. If so, she should be requested provide a copy of any Court records concerning child support payments the veteran has been ordered to provide. 2. If the appellant desires to continue her appeal, the RO should review the claims file and ensure that all contested claims procedures have been followed. In particular, the veteran and his representative should be furnished either a copy of the appellant's VA Form 9 (Appeal to Board of Veterans' Appeals) received in August 1998 or informed of the substance of that document, and be provided an opportunity to respond thereto. 3. After completion of the above development, if any additional evidence is associated with the claims file that was not previously considered by the RO, then the RO should readjudicate the case based on this evidence. If the determination remains adverse to the appellant, then both the appellant and the veteran should be provided with a Supplemental Statement of the Case and afforded an opportunity to respond thereto. If no additional evidence is associated with the claims file as a result of the development completed above and the appellant desires to continue her appeal, this claim should be forwarded directly to the Board for appellate review. The purpose of this REMAND is to provide both parties in interest due process of law. The Board does not intimate any opinion, favorable or unfavorable, as to the merits of this appeal. The parties are free to submit any additional evidence or argument in connection with the appeal. However, no action is required unless otherwise notified. RAYMOND F. FERNER Acting 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).