Citation Nr: 0006503 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-10 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement of the appellant to an apportioned share of the veteran's VA pension benefits on her behalf and on behalf of her daughter. REPRESENTATION Veteran represented by: Virginia Department of Veterans Affairs ATTORNEY FOR THE BOARD J. A. Markey, Counsel INTRODUCTION The veteran served on active duty from August 1966 to September 1969. This matter came before the Board of Veterans' Appeals (Board) from a March 1998 decision letter by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia that denied the appellant's claim for an apportionment of the veteran's VA pension benefits. A notice of disagreement was received in March 1998. A statement of the case was issued in June 1998. A substantive appeal was received from the appellant in June 1998. A hearing before the Board in Washington, D.C. was scheduled for January 14, 1999, but the appellant failed to report for this hearing. On January 19, 1999, the Board received a letter from the appellant which was construed as a motion to show good cause to be rescheduled for another Board hearing. This motion was denied by the Board in March 1999. The Board notes that, as will be addressed in the REMAND portion of this decision, the appellant had filed a notice of disagreement with respect to a January 1995 special apportionment decision. However, a statement of the case has never been issued with respect to that issue. Due to a change in the appellant and the veteran's circumstances, the nature of that claim is different than the claim currently before the Board, as will become apparent below. As such, the Board can adjudicate the current claim without holding it in abeyance pending the outcome (if any) of the earlier claim for an apportionment of the veteran's pension benefits. FINDINGS OF FACT 1. The appellant and the veteran were married in December 1993. 2. The veteran and the appellant were legally divorced in March 1997. 3. In February 1998, the appellant filed a claim for an apportioned share of the veteran's VA pension benefits on her behalf and on behalf of her daughter; the appellant's daughter is not the veteran's child. 4. Subsequent to March 1997, neither the appellant nor her daughter met the eligibility requirements for an apportioned share of the veteran's VA benefits. CONCLUSION OF LAW Subsequent to March 17, 1997, the appellant and her daughter were no longer entitled by law to an apportionment of veteran's VA pension benefits. 38 U.S.C.A. §§ 101(31); 101(4)(A) (West 1991 & Supp. 1999); 38 C.F.R. § 3.1(j), 3.50, 3.57, 3.452 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION In a February 1998 letter, the appellant contended, in substance, that she was entitled to an apportioned share of the veteran's compensation benefits on her behalf and on behalf of her daughter. Under VA regulations, all or any part of a veteran's pension or compensation award may be apportioned if the veteran's spouse and/or children are not residing with the veteran and the veteran is not discharging his or her responsibility for the spouse or children's support. 38 U.S.C.A. § 5307 (West 1991); 38 C.F.R. § 3.450(a)(1)(ii) (1999). The law provides that a "spouse" is a person of the opposite sex who is a husband or wife. 38 U.S.C.A. § 101(31) (West 1991 & Supp. 1999); 38 C.F.R. § 3.50(c) (1999). A wife is a person whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j). 38 C.F.R. § 3.50(a) (1999). For VA benefit purposes, a marriage means a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. § 3.1(j) (1999). The Board notes that a marriage certificate from the Commonwealth of Virginia indicates that the veteran and the appellant were married in December 1993. The Board observes that the appellant and the veteran were divorced per a Decree A Vinculo Matrimonii of the Circuit Court for the City of Newport News, Virginia, entered in March 1997. As such, the appellant was not the veteran's spouse after March 1997 and, therefore, at the time of her February 1998 claim. The Board notes that a "child," under 38 U.S.C.A. § 101 (West 1991), means a person who is unmarried and (1) who is under the age of eighteen years, (2) who, before attaining the age of eighteen years, became permanently incapable of self- support, or (3) who, after attaining the age of eighteen years and until completion of education or training, is pursuing a course of instruction at an approved educational institution, and who is a legitimate child, a legally adopted child, or a stepchild who is a member of the veteran's household. See also, 38 C.F.R. § 3.57 (1999). The term "stepchild" means a legitimate or an illegitimate child of the veteran's spouse, including a child of a surviving spouse whose marriage to the veteran is deemed valid under the provisions of 38 C.F.R. § 3.52, and who otherwise meets the requirements noted above. The record reflects that the veteran is not the father of the appellant's daughter, nor has this been alleged by any of the parties involved in this matter. It is clear that the appellant's daughter, born February [redacted], 1980, was the veteran's stepchild from the day the appellant and veteran married until the March 1997 divorce. However, it is also clear that she was not a member of the veteran's household at some point prior to the divorce, and although the exact date that she left the household is unclear to the Board from a review of the record (the evidence does suggest October 1994), at that point, she was no longer the veteran's "child" for VA purposes. Regardless of the confusion surrounding her departure from the veteran's household, because of the March 1997 divorce, the appellant's daughter was no longer the veteran's "child" for VA purposes, as the appellant was no longer his "spouse" (again, a "stepchild" is legitimate or an illegitimate child of the veteran's spouse). In other words, the appellant's child was not the veteran's "child" (or stepchild) after March 1997, and therefore, at the time of the February 1998 claim. Therefore, based on this uncontradicted evidence demonstrating that the veteran and the appellant were divorced in March 1997, the appellant, on her behalf and on behalf of her daughter, was not entitled to an apportioned share of the veteran's compensation benefits at the time of her February 1998 claim (or thereafter). Under these circumstances, there is no authority in law which would permit the grant of an apportioned share of his benefits after this date, and the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER The appeal is denied. REMAND As noted in the introduction portion of this decision, the appellant had filed a notice of disagreement with respect to a January 1995 special apportionment decision. Specifically, in an August 1995 letter to the RO, the appellant expressed disagreement with that decision, and requested that the case "go before a Board member." The Board finds that this should have been construed as a notice of disagreement. See 38 C.F.R. § 20.201 (1999). However, a statement of the case has never been issued with respect to that issue. As such, a statement of the case should be issued by the RO regarding this issue. See 38 C.F.R. § 19.26 (1999); Manlincon v. West, 12 Vet. App 238 (1999) (a notice of disagreement initiates review by the Board of the RO's denial, thus, the next step is for the RO to issue a statement of the case on the denial of the issue). As noted in the introduction, this claim is different than the claim adjudicated above. Specifically, at the time of this January 1995 decision, unlike the relevant time period discussed in the above decision, the appellant and veteran were still legally married and apparently living apart. In view of all of the above, this matter is REMANDED to the RO for the following action: 1. The RO should issue a statement of the case to the appellant, and to the veteran and his representative, setting forth the evidence, a citation to and discussion of applicable laws and regulations and a detailed analysis of the reasons for the RO's January 1995 determination (the special apportionment decision). The appellant should be informed of the necessity of filing a timely substantive appeal if she wishes to place this issue in appellate status. 38 C.F.R. § 19.26 (1999). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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 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. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs 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. N. R. ROBIN Member, Board of Veterans' Appeals