Citation Nr: 0333852 Decision Date: 12/04/03 Archive Date: 12/15/03 DOCKET NO. 02-15 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the appellee was entitled to an apportioned share of the veteran's Department of Veterans Affairs (VA) disability compensation benefits prior to their divorce. REPRESENTATION Appellant represented by: Military Order of the Purple Heart ATTORNEY FOR THE BOARD John R. Pagano, Counsel INTRODUCTION The veteran had active military service from January 1964 to May 1969. This matter arises from a March 2002 decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that granted the veteran's ex-spouse an apportioned share of his VA disability compensation benefits from January 1, 2002, to February 1, 2002. Following compliance with the procedural requirements set forth in 38 U.S.C.A. § 7105A (West 2002) regarding contested claims, the case was forwarded to the Board of Veterans' Appeals (Board) for appellate consideration. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the issue on appeal has been obtained. 2. The veteran is in receipt of disability compensation benefits at the 100 percent rate. 3. From January 1, 2002, until February 1, 2002, the veteran received an additional dependency allowance for a spouse. 4. The veteran and his ex-spouse were divorced on January [redacted], 2002. 5. At the time of the appellee's claim for an apportioned share of the veteran's VA disability compensation benefits, she was still married to the veteran. 6. The veteran has not demonstrated financial hardship to warrant a denial of an apportionment of his disability compensation benefits to his spouse for the month of January 2002. 7. The appellee has demonstrated financial hardship to warrant an apportionment of the veteran's VA disability compensation benefits during the month of January 2002. CONCLUSION OF LAW The requirements for an apportionment of the veteran's VA disability compensation benefits on behalf of the appellee, his ex-wife, for the month of January 2002 have been met. 38 U.S.C.A. §§ 5107, 5307 (West 2002); 38 C.F.R. §§ 3.450, 3.451 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Considerations There has been a significant change in the law that applies to VA claims during the pendency of this appeal. The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), eliminated the well-grounded claim requirements, expanded the duty of VA to notify the appellant and representative, and enhanced its duty to assist an appellant in developing the information and evidence necessary to substantiate a claim. VA issued regulations to implement the VCAA in August 2001. 66 Fed. Reg. 45620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159 (2002)). The amendments were effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a) that is effective August 29, 2001. Apart from the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), VA stated that "the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided in the VCAA." 66 Fed. Reg. 45,629. Accordingly, in general where the record demonstrates that the statutory mandates have been satisfied, the regulatory provisions likewise are satisfied. First, VA has a duty to notify the veteran and his representative of any information and evidence necessary to substantiate and complete a claim for VA benefits. See VCAA, § 3(a), (codified at 38 U.S.C.A. §§ 5102 and 5103). Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate his claim. See VCAA, § 3(a) (codified at 38 U.S.C.A. § 5103A). The United States Court of Appeals for Veterans Claims (Court) held in Holliday v. Principi, 14 Vet. App. 280 (2001) that the VCAA was potentially applicable to all claims pending on the date of enactment, citing Karnas v. Derwinski, 1 Vet. App. 308 (1991). Subsequently, however, the United States Court of Appeals for the Federal Circuit held that Section 3A of the VCAA (covering the duty to notify and duty to assist provisions of the VCAA) was not retroactively applicable to decisions of the Board entered before the effective date of the VCAA (Nov. 9, 2000). Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002); See also Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A VA Office of General Counsel opinion, VAOPGCPREC 11-2000 (Nov. 27, 2000), appears to hold that the VCAA is retroactively applicable to claims pending on the date of enactment. Further, the regulations issued to implement the VCAA are to be applicable to "any claim for benefits received by VA on or after November 9, 2000, the VCAA's enactment date, as well as to any claim filed before that date but not decided by VA as of that date." 66 Fed. Reg. 45,629 (Aug. 29, 2001). Precedent opinions of the chief legal officer of the Department and regulations of the Department are binding on the Board. 38 U.S.C.A. § 7104(c) (West 2002). For purposes of this determination, the Board will assume that the VCAA is applicable to claims or appeals pending on the date of enactment of the VCAA. In the present case, the Board finds that VA's redefined duty to assist has been fulfilled under the applicable statute and regulations. VA must notify the appellant and his representative of evidence and information necessary to substantiate his claim, and inform him whether he or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a) (West 2002); 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159(b)); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The appellant was provided a statement of the case that informed him of the evidence used in conjunction with his claim, the pertinent laws and regulations, the adjudicative action taken, and the reasons and bases for the decision. In addition, the record indicates that all relevant facts have been properly developed. As such, all evidence necessary for an equitable disposition of the issue on appeal has been obtained. VA, therefore, has no outstanding duty to inform the appellant that any additional information or evidence is needed. II. Apportionment of the Veteran's VA Disability Compensation The veteran contends that his VA disability compensation benefits should not have been apportioned to his ex-wife for the month of January 2002. He asserts that he had been reasonably contributing to his ex-wife's support prior to their divorce. All or any part of the VA disability compensation payable on account of any veteran may be apportioned on behalf of the veteran's spouse if the spouse is not residing with the veteran and the veteran is not reasonably discharging his responsibility for the spouse's support. 38 U.S.C.A. § 5307(a)(2); 38 C.F.R. § 3.450(a)(1). A "special" apportionment may be paid under the circumstances set forth in 38 C.F.R. § 3.451. In this regard, where hardship is shown to exist, benefits may be specially apportioned between the veteran and his dependent spouse on the basis of the facts in the individual case, as long as it does not cause undue hardship to the other person's interest. In determining the basis for a special apportionment, consideration will be given to such factors as (1) the amount of VA benefits payable, (2) other resources of income of the veteran and those dependents in whose behalf apportionment is claimed, and (3) special needs of the veteran and the apportionment claimant. Id. The facts in this case are as follows. The veteran left his ex-wife on August [redacted], 2001. The veteran and his ex-wife never reconciled; a judgment of divorce ultimately was finalized on January [redacted], 2002. In December 2001, the veteran's ex-wife submitted a claim for an apportioned share of the veteran's VA disability compensation benefits. In conjunction therewith, she submitted monthly income and expenses. These indicated that her monthly expenses totaled $3,471.73, while her net monthly income totaled $1,157.68. In contrast, the veteran submitted a statement of his income and expenses in April 2002. This indicated that he had monthly income totaling $2,163, and monthly expenses totaling $1,539. He also indicated that he had been contributing to her support; however, no proof of this was submitted. As previously noted, the veteran and his ex-spouse were divorced on January [redacted], 2002. Thus, he was entitled to a dependency allowance for his ex-spouse through the end of that month. See 38 C.F.R. § 3.501(d)(2) (2003). Coincidentally, if the appellee was entitled to an apportioned share of the veteran's VA disability compensation benefits, such entitlement would conclude concurrently with the veteran's entitlement to an additional dependency allowance based upon their marriage. The veteran's ex-spouse was awarded $124 for the month of January 2002. This was in the form of an apportionment. This also was an amount equal to that which the veteran was entitled to receive for a dependent spouse. Given that the veteran's ex-spouse demonstrated need for an apportioned share of the veteran's VA disability compensation benefits, and because the veteran has not demonstrated that the apportionment of his benefits for the month of January 2002 in the amount of $124 resulted in his undue financial hardship, the Board finds no reasonable basis to deny the ex-spouse an apportioned share of the veteran's VA disability compensation benefits for the month of January 2002. See 38 C.F.R. §§ 3.450, 3.451. As such, an apportionment of the veteran's VA disability compensation benefits in the amount of $124 for the month of January 2002 was warranted. ORDER The appeal is denied. ____________________________________________ WARREN W. RICE, JR. Veterans Law Judge, Board of Veterans' Appeals