Citation Nr: 0000668	
Decision Date: 01/10/00    Archive Date: 01/19/00

DOCKET NO.  95-28 591A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUE

Entitlement to an effective date earlier than December 1, 
1994, for an apportionment award.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel



INTRODUCTION

The veteran served on active duty from April 1987 to March 
1991.  He married the appellant in February 1987.  Birth 
certificates of record shows that a son was born to the 
veteran and the appellant in December 1985 and that a girl 
was born to the couple in January 1988.

This matter came before the Board of Veterans' Appeals (the 
Board) on appeal from a May 1995 rating decision of the 
Atlanta, Georgia, Department of Veterans Affairs Regional 
Office (VARO), which granted the appellant's claim for 
apportionment of the veteran's VA benefits effective from 
December 1, 1994.


FINDINGS OF FACT

1.  A claim for apportionment is a simultaneously contested 
claim.

2.  The VA received an original claim for apportionment of 
the veteran's VA benefits from the appellant on March 30, 
1994.

3.  The appellant's March 30, 1994, claim was denied by VARO 
and she was notified of this action by a letter dated 
September 1, 1994, wherein she was informed that she needed 
to submit within 60 days of this letter any notice of 
disagreement with that determination.

2.  The VA received a statement from the appellant on 
November 22, 1994, indicating disagreement with the September 
1994 VARO decision.

3.  A reopened claim for apportionment was received on 
November 22, 1994.

CONCLUSION OF LAW

The criteria for an earlier effective date for an award of 
apportionment benefits are not met.  38 U.S.C.A. §§ 5107, 
5110 (West 1991); 38 C.F.R. § 3.400 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Generally, the effective date of an evaluation and award of 
compensation based on an original claim, a claim reopened 
after final disallowance, or a claim for increase claim will 
be the date of receipt of the claim or the date entitlement 
arose whichever is later.  38 U.S.C.A. § 5110 (West 1991) and 
38 C.F.R. § 3.400 (1999).

In this case, the VA received an original claim for 
apportionment of the veteran's VA benefits from the appellant 
on March 30, 1994.  VARO denied the claim in September 1994 
because it determined that undue financial hardship would 
result to the veteran.  Notice of this determination included 
a statement advising the appellant that any disagreement with 
this decision should be submitted within 60 days of the date 
on the notice, otherwise this decision would become final.

On November 22, 1994, the appellant submitted a statement 
indicating her disagreement with the denial of benefits.  
VARO construed this statement as claim to reopen.

In a May 1995 decision, the appellant's claim for apportioned 
benefits was granted.  An effective date of December 1, 1994, 
was assigned.

In reviewing the record, the Board notes that VARO correctly 
determined that the appellant's November 22nd letter was a 
claim to reopen because it was not submitted within the 
allowable time frame (60 days).  The appellant was notified 
on September 1, 1999, that she had 60 days to respond to the 
notice of the adverse determination; however, she did not 
respond until November 22, 1999,,which was beyond the 60 days 
allowable.  See 38 C.F.R. § 20.501(a)(in simultaneously 
contested claims, the adversely affected party has 60 days 
from the date of notice of the adverse action to submit a 
notice of disagreement).  Therefore, finality attached to 
VARO's September 1994 decision and the subsequently received 
statement on November 22, 1994, was clearly a claim to 
reopen.

With the above in mind, the Board finds that the reopened 
claim for apportionment of the veteran's benefits was 
received on November 22, 1994.  As the pertinent law and 
regulation provides that the effective date of an award of 
compensation based on a reopen claim is the date of receipt 
of the claim, the effective date of the appellant's award is 
properly November 22, 1994, with the effective date of 
payment beginning on December 1, 1994.  See 38 U.S.C.A. 
§§ 5110, 5111 (payment of monetary benefits based on an award 
of compensation may not be made to an individual before the 
first day of he calendar month following the month in which 
the award became effective under section 5510).

Accordingly, in view of the above, the Board finds that the 
preponderance of the evidence is against the claim for an 
earlier effective date.

The Board notes that the provision of 38 C.F.R. § 3.102 is 
not for application in this case as there is not an 
approximate balance of the positive and negative evidence, 
which does not satisfactorily prove or disprove the claim, 
for the reasons discussed above.



ORDER

An earlier effective date is denied.



		
	C.P. RUSSELL
	Member, Board of Veterans' Appeals