Question:
One of our vets has TBI and can’t keep up with his mail, etc. So he was stunned to see garnishment come out of his monthly VA disability amount, as he hadn’t realized his ex-wife applied for apportionment. He did remember the VA calling him and asking him a bunch of confusing questions. In their decision letter, the VA stated that the veteran had AGREED to apportionment during that call, which the veteran contends that he absolutely did NOT agree to. Due to TBI, he is easily confused. Regardless, he has missed the deadline to appeal.
My 1st question is: Under the new appeals program, do we submit a 526EZ for re-open… or a Supplemental lane appeal, with a motion for review due to CUE along with financial hardship evidence? Or just send both apps with his claim at same time, just in case?
My 2nd question is: The vet was rated permanent, total disabled and given a medical out with 30% at time of retirement. He is service-connected for TBI and a host of other combat injuries. Isn’t there some provision in the law that keeps his disability compensation totally off limits? Like, perhaps he waived retired pay in lieu of receiving disability benefits… we can always withdraw that waiver? He receives them both anyhow, now that he’s 100% rated. Thanks!
Jim's Reply:
This gets very complex pretty quickly. Your answer is in the M21-1III_v_3_Sec A Part 3. Deciding an Apportionment Claim Sub k...Handling NODs and Evidence VA Receives After the Appeal Period Ends here.
These are not typical appeals, the appeal doesn't follow the usual process and it's a pretty sure thing that any appeal will be a steep uphill climb now that the apportionment decision has been made. If your veteran has not been declared incompetent, we must assume that he is able to manage his own activities of daily living, including phone conversations and transactions with the VA as well as managing his finances. I'm not sure I see any CUE claim that can be brought into play? I'd be very careful about trying to raise CUE unless you're experienced with such claims...CUE is steeped in legal theory. A word of caution...any time an advocate begins to cite the inability of the client to manage activities of daily living (like dealing with phone calls and finances), we may cause VA to seek a declaration of incompetence that requires that an independent fiduciary be appointed by VA to manage the veterans finances. When a former spouse files for an apportionment of the VA disability money the VA always has an obligation to protect the veteran first. In my own experience VA goes above and beyond to protect the veteran and only the most egregious instances of child support negligence are actually adjudicated to be apportioned. While there are limits to what a creditor is able to do when the veteran owes money for a debt, the law has long held that the veterans family is not a creditor and child support is not a debt. VA disability payments are made so that the veteran may more normally support himself and his family in spite of the service connected disabling conditions. Divorce doesn't sever the family connection between a veteran and his obligation to his children and if the court says he owes the money, he does until the court changes the order. Before you take any action, you should study the M21 I linked for you and follow those details carefully.