Citation Nr: 0004334 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 93-24 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement of the appellant to receive an increased apportionment of the veteran's disability compensation on behalf of the veteran's minor child [redacted]. (The issue of is whether the appellant filed a timely Notice of Disagreement with respect to the issue of entitlement to an increased apportionment of the veteran's disability compensation on behalf of the veteran's minor child [redacted] is the subject of a separate decision of the Board.) REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Steven D. Reiss, Counsel INTRODUCTION The veteran had active service from March 1977 to March 1979. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions of May and July 1992 by the Department of Veterans Affairs (VA) North Little Rock, Arkansas, Regional Office (RO). The decisions denied the appellant's claim for an apportionment of the veteran's disability compensation in an amount higher than $20 per month. The appellant has custody of the veteran's minor child [redacted]. REMAND When this matter was previously before the Board in February 1996, it was remanded in light of the veteran's recent release from incarceration. In addition, in a separate decision, which was issued concurrently with the remand, the Board denied the veteran's claim for an increased rating for his service-connected chronic undifferentiated schizophrenia (schizophrenia), then evaluated as 30 percent disabling. Thereafter, in a May 1996 rating action, the RO increased the evaluation of the veteran's schizophrenia to 50 percent, effective November 2, 1995. In addition, in June 1996, the RO confirmed and continued its denial of the appellant's claim for an increase in amount of VA compensation that was apportioned to her on behalf of their son [redacted], on the basis that the appellant had failed to respond to its March 1996 letter; that letter was apparently issued pursuant to the Board's February 1996 remand instructions. The RO has since acknowledged that the appellant promptly responded, explaining that it was not until July 1996 that it realized that her March 1996 correspondence had inadvertently been placed in the claims folder of another veteran. In July 1996, increased the appellant's apportionment of the veteran's benefits to $50.00 per month, effective December 1, 1994. In addition, the RO held that, effective November 27, 1997, the appellant's apportionment would cease. In doing so, the RO indicated in its July 1996 letter notifying her of the rating action that the decision was considered a full grant of the benefit sought on appeal. However, inasmuch as a greater benefit is potentially available, and the appellant is presumed to seek the maximum available benefit, her claim for an increased apportionment remains viable on appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35, 38 (1993). The appellant expressed her further disagreement with both the effective date of the award and the amount of compensation that was apportioned on behalf their minor child in an August 1996 statement. Thereafter, in January 1997, the RO granted entitlement to an apportionment of $50.00 per month retroactive to March 1, 1994. The appellant has continued to express her disagreement with the RO's determinations. Where, as here, the veteran is not living with his spouse and his children are not in his custody, his compensation or pension may, under certain circumstances, be apportioned. See 38 U.S.C.A. § 5307 (West 1991). Further, compensation or pension may be specially apportioned between the veteran and his dependents or the surviving spouse and children on the basis of the facts in the individual case, so as long as it does not cause undue hardship to the veteran or other persons in interest. See 38 C.F.R. § 3.451 (1999). In determining the rate of apportionment, consideration is given to such factors as the amount of VA benefits payable, other resources and income of the veteran and the dependent on whose behalf apportionment is claimed, and special needs of the veteran, his or her dependents, and the apportionment claimant. See 38 C.F.R. §§ 3.451, 3.453 (1999). Significantly, 38 C.F.R. § 3.451 further provides that apportionment of more than 50 percent of the veteran's benefits is ordinarily considered to constitute undue hardship on him or her while apportionment of less than 20 percent of his or her benefits is ordinarily considered insufficient to constitute a reasonable basis for any apportionee. The Board notes that a review of the RO's January 1997 letter, which notified the veteran that the appellant's share of his VA compensation benefits had been increased, shows that he would receive much more than 80 percent of the combined monthly disbursement of VA disability benefits. In addition, apparently because the RO concluded that the appellant had not timely perfected an appeal (a determination that the Board reverses in a separate decision that will be issued concurrently), it did not consider the evidence that the appellant has submitted, in the form of numerous statements in support of her claim. Because the merits of her contentions have not been addressed by the RO, a Supplemental Statement of the Case must be issued, and thus this matter must be remanded. 38 C.F.R. § 19.31 (1999). Moreover, a review of the claims folder discloses that it does not include recent pertinent financial information from either the appellant or the veteran, and that Board finds that, in order to adjudicate this question fairly, it needs to have access to the present financial circumstances of both parties. As such, further development is also required. The Board regrets that an additional remand of this matter will further delay its decision in this appeal, but finds that such action is, nonetheless, necessary, to ensure that the record is complete and to ensure that all due process requirements are met. Accordingly, this case is hereby REMANDED for the following actions: 1. The RO should send the appellant and the veteran, with a cover letter, VA Financial Status Report forms, and the appellant and the veteran should be instructed to complete these forms in full and to return them to the RO. The appellant and the veteran should be afforded a reasonable amount of time to return the completed forms, but they should each be advised that failure to complete and to return the forms in a timely fashion may well result in an adverse determination. 2. After the RO completes this development, as well as any other development it deems appropriate, it should readjudicate the appellant's claim on the basis of all the evidence of record, to specifically include all statements and other evidence received since the Board's February 1996 decision, and all pertinent legal authority. The RO should provide adequate reasons and bases for its determinations, citing to all governing legal authority and precedent, and addressing all issues and concerns that are noted in this REMAND. 3. The appellant, the veteran, and each of their representatives should be furnished with supplemental statements of the case and should be afforded the appropriate reasonable opportunity to respond thereto before the case is returned to the Board for further appellate review. The purpose of this REMAND is to accomplish additional development and adjudication and to ensure that all due process requirements are met; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The parties need take no action until otherwise notified, but they may furnish additional evidence within the appropriate time period. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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 (known as the United States Court of Veterans Appeals prior to March 1, 1999) 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. 1998) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the RO 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. JACQUELINE E. MONROE 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).