Citation Nr: 18160357
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 15-27 157A
DATE:	December 27, 2018
REMANDED
Entitlement to an apportionment of the Veteran’s VA disability compensation benefits on behalf of J.R.Y. is remanded.
REASONS FOR REMAND
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, that denied the Appellant’s claim for an apportionment of the Veteran’s VA disability compensation benefits on behalf of their daughter, J.R.Y.
The Appellant appeared at a hearing before the undersigned in June 2018.  The Veteran was provided notice of the hearing, but he elected not to appear.  A transcript of the hearing is of record.
This case involves a simultaneously contested claim; therefore, the provisions of 38 U.S.C. § 7105A are applicable.  Cases involving simultaneously contested claims are also subject to special procedural regulations.  See 38 C.F.R. §§ 19.100, 19.101, 19.102, 20.500, 20.501, 20.502, 20.503, 20.504.  Although both parties received a copy of the August 2015 statement of the case, it does not appear the Veteran was furnished the content of the Appellant’s substantive appeal as required by 38 C.F.R. § 19.102.  The Board finds compliance with 38 C.F.R. § 19.102 to be of particular importance in this case since the August 2015 statement of the case did not provide the Veteran notice that the Appellant seeks an apportionment of his VA disability compensation benefits on the basis that J.R.Y. became permanently incapable of self-support prior to reaching 18 years of age.  Thus, a remand is necessary to ensure compliance with the applicable procedural regulations.
After the June 2018 Board hearing, the Appellant submitted evidence indicating J.R.Y. has been receiving supplemental security payments ( SSI ) from the Social Security Administration (SSA) with a disability onset date of July 6, 1998.  This evidence has not been considered by the Agency of Original Jurisdiction (AOJ) in the first instance.  See 38 C.F.R. § 20.1304(d) (requiring both parties to waive initial AOJ consideration of evidence received by the Board).  Although 38 C.F.R. § 20.1304(d) outlines a process in which the Board can provide parties notice of newly received evidence with a 60-day response period, a remand in this case is necessary for other reasons; therefore, it will also ensure due process with regard to the newly received evidence.  Further, when there has been a determination regarding SSA benefits, the records concerning that decision must be obtained, if relevant.  See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010).  Here, the potentially outstanding SSA records are relevant in the context of the issue on appeal.
Although the Appellant has submitted evidence regarding J.R.Y.’s incapacity for self-support, there is no evidence regarding J.R.Y.’s marital status.  The Board finds this evidence necessary because to establish dependency the evidence must show both that J.R.Y. is unmarried and became permanently incapable of self-support prior to reaching 18 years of age.  See 38 U.S.C. § 101(4); 38 C.F.R. § 3.57(a).  The Board notes the Appellant testified during the June 2018 hearing that J.R.Y. has children of her own; therefore, the Board finds it necessary to verify her marital status.
Finally, the record does not include any financial information for the parties during the appeal period.  The Board finds this evidence necessary to make an informed decision on the Appellant’s apportionment claim in the event dependency is established for J.R.Y.
The matter is REMANDED for the following action:
1. Provide the Veteran notice of the content of the Appellant’s August 2015 substantive appeal.  Specifically, inform the Veteran that the Appellant seeks an apportionment of his VA disability compensation benefits on the basis that J.R.Y. should continue to be considered his dependent because she became permanently incapable of self-support prior to reaching 18 years of age.
2. Advise the Veteran that he may be eligible for additional dependency allowance for J.R.Y. should the evidence establish she is unmarried and became permanently incapable of self-support prior to reaching 18 years of age, providing him a VA Form 21-686c to complete should he elect to seek dependency allowance for her on this basis.
3. Verify J.R.Y.’s marital status.  If J.R.Y. is married, no further development is necessary, and the Appellant’s claim should be denied.
4. Request any SSA records that may be available for J.R.Y.  If records are not obtained, associate documentation of all efforts to obtain the records with the claims file, to include findings consistent with statute and regulation as to why efforts to obtain the records ceased.
5. Request a VA Form 21-0788 from both parties, advising each party that failure to provide the requested financial statement could result in an adverse decision for them in this matter.
6. Reconsider the issue on appeal to include full consideration of the provisions of both 38 C.F.R. § 3.450 (general apportionments) and 38 C.F.R. § 3.451 (special apportionments).
 
Jonathan Hager
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. S. Kyle, Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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