Citation Nr: 0000232	
Decision Date: 01/05/00    Archive Date: 01/11/00

DOCKET NO.  98-02 073A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, 
California


THE ISSUE

Entitlement to an effective date earlier than May 1, 1997 for 
payment of apportionment of VA disability pension benefits.


REPRESENTATION

Appellant represented by:	California Department of 
Veterans Affairs


ATTORNEY FOR THE BOARD

M. J. Bohanan, Counsel



INTRODUCTION

The veteran served on active duty from February 1969 to 
October 1971.

This case comes to the Board of Veterans' Appeals (Board) on 
appeal from a September 1997 special apportionment decision 
of the Oakland, California, Department of Veterans Affairs 
Regional Office (VARO), which granted the appellant, the 
veteran's former spouse, entitlement to apportionment of the 
veteran's pension on behalf of the minor children, effective 
May 1, 1997. 


FINDINGS OF FACT

1.  The appellant's claim for an apportionment of the 
veteran's VA pension benefits was denied by means of a 
special apportionment decision, dated May 24, 1996.  The 
appellant was notified of the decision by means of a letter 
from VARO on May 29, 1996.

2.  The appellant did not file a notice of disagreement (NOD) 
within 60 days of the notification to her of VARO's special 
apportionment decision in May 1996.

3.  The appellant expressed disagreement with the denial and 
requested an apportionment of the veteran's VA pension 
benefits in a statement received at VARO on April 14, 1997, 
which was accepted as a new claim.

CONCLUSION OF LAW

An effective date earlier that May 1, 1997 for apportionment 
of the veteran's VA disability pension benefits is not 
warranted.  38 U.S.C.A. §§ 7105(a), 7105A(a) (West 1991 & 
Supp. 1997); 38 C.F.R. §§ 20.3(o), 20.200, 20.201, 20.501 
(1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes that in a case concerning apportionment of 
benefits, the provisions of 38 U.S.C.A. § 7105A (West 1991) 
regarding simultaneously contested claims apply.  Appellate 
review is initiated by a notice of disagreement and completed 
by a substantive appeal after a statement of the case is 
furnished.  38 U.S.C.A. § 7105(a) (West 1991).  In the case 
of a simultaneously contested claim, to be timely, a NOD from 
the person or persons adversely affected must be filed within 
60 days from the date of mailing of the notification of the 
determination to him or her; otherwise, that determination 
will become final.  The date of mailing of the letter of 
notification will be presumed to be the same as the date of 
that letter for purposes of determining whether a NOD has 
been timely filed. 38 U.S.C.A. § 7105A(a) (West 1991); 38 
C.F.R. § 20.501(a) (1999).

In addition, a substantive appeal must be filed within 30 
days from the date of mailing of the SOC.  The date of 
mailing of the SOC will be presumed to be the same as the 
date of the SOC for purposes of determining whether an appeal 
has been timely filed. 38 U.S.C.A. § 7105A(b) (West 1991); 38 
C.F.R. § 20.501(b) (1999).

The United States Court of Appeals for Veterans Claims (known 
as the United States Court of Veterans Appeals prior to March 
1, 1999) (hereinafter, "the Court") has held that the 
formality of perfecting an appeal to the Board is part of a 
clear and unambiguous statutory and regulatory scheme which 
requires the filing of both a NOD and a formal appeal.  When 
an appellant fails to file a timely appeal, and does not 
request an extension of time in writing before the expiration 
of time for the filing of the substantive appeal, he or she 
is statutorily barred from appealing the decision of the 
agency of original jurisdiction.  Roy v. Brown, 5 Vet. App. 
554, 556 (1993).

VARO denied the appellant's claim for apportionment of the 
veteran's VA disability benefits in a May 24, 1996 special 
apportionment decision and notified the appellant by means of 
a May 29, 1996 letter.  The appeal period for the appellant 
ended 60 days after May 29, 1996.

In a Statement in Support of Claim, VA Form 21-4138, dated 
April 10, 1997 and received at VARO on April 14, 1997, the 
appellant expressed disagreement with the denial of 
apportionment of the veteran's VA disability benefits.  This 
statement was accepted by VARO as a new claim for 
apportionment of benefits, which was granted in a September 
10, 1997 special apportionment decision.  The effective date 
of the grant of apportionment was May 1, 1997, the first day 
of the month following receipt of the appellant's claim for 
such benefit.

In this case, the appellant did not file a timely NOD 
regarding the denial of apportionment on May 24, 1996, and 
that decision became final.  Therefore, VARO properly accepted 
her April 14, 1997 statement as a new claim for apportionment.  

The effective date of an apportionment on original claims is 
in accordance with the facts found.  On other than original 
claims, the effective date is from the first day of the month 
following the month in which the claim is received for 
apportionment of a veteran's award, except that where payment 
to him (her) has been interrupted, apportionment will be 
effective the day following the date of last payment if a 
claim for apportionment is received within 1 year after that 
date.  38 C.F.R. § 3.400(e)(1).

After having carefully reviewed all of the evidence, the Board 
finds that the appellant did not file a timely notice of 
disagreement with VARO's May 24, 1996 denial of apportionment 
of the veteran's VA pension, and an effective date earlier 
than May 1, 1997, the first day of the month following her new 
claim for such benefits, is not warranted.


ORDER

An effective date earlier than May 1, 1997 for apportionment 
of the veteran's VA pension benefits is not warranted, and 
the appeal is denied.




		
	NANCY I. PHILLIPS
	Member, Board of Veterans' Appeals