Citation Nr: 1547235 Decision Date: 11/09/15 Archive Date: 11/13/15 DOCKET NO. 11-22 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether the apportionment of the Veteran's VA compensation benefits in the amount of $300 for the support of his minor child, J.W., was proper. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from August 1964 to February 1965 and from March 1965 to March 1968. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an April 2010 decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO) which granted an apportionment of the Veteran's benefits in favor of J.W., his minor child. The Veteran testified at an August 2015 Board video conference hearing. The hearing transcript has been associated with the record. FINDINGS OF FACT 1. J.W. is legally recognized as the Veteran's minor child and resides with his mother, M.P., the custodial parent in this case. 2. For the entire appeal period, the Veteran was reasonably discharging his responsibility for the support of J.W. 3. M.P. has established undue financial hardship to be awarded special apportionment of the Veteran's VA benefits for the support of J.W. 4. An apportionment of VA benefits would not result in undue financial hardship on the Veteran. CONCLUSION OF LAW A special apportionment of the Veteran's VA compensation benefits, on behalf of his dependent child, J.W., was proper. 38 U.S.C.A. § 5307 (West 2014); 38 C.F.R. §§ 3.450, 3.451, 3.452, 3.458 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION This appeal concerns a claim for benefits under chapter 53 of title 38, United States Code. The rules governing VA notice and assistance upon receipt of a claim for benefits as outlined in 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159, the Veterans Claims Assistance Act of 2000 (VCAA), do not apply to claims for benefits provided under chapters other than chapter 51. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). While the VCAA does not apply to decisions regarding how benefits are paid, VA rules do include special procedural requirements for simultaneously contested claims, such as a claim for apportionment. See 38 C.F.R. §§ 19.100, 19.101, and 19.102 (2015); Barger v. Principi, 16 Vet. App. 132, 138 (2002) (holding that the notice and duty to assist provisions of the VCAA do not apply to chapter 53 waiver of recovery matters, as chapter 53 already contains its own notice provisions). A claim for an apportionment is a "contested claim," and is subject to the special procedural regulations set forth in 38 C.F.R. §§ 19.100, 19.101, and 19.102 (2015). The Board finds that the applicable contested claims procedures were followed in this case, as the RO provided the Veteran with notice of his procedural and appellate rights along with his decision as well as in an August 2011 statement of the case. An August 2011 notice of appeal was also sent to the apportionment claimant. A Veteran's benefits may be apportioned if the Veteran is not residing with his spouse or children, and a claim for apportionment is filed for or on behalf of the spouse or children. 38 C.F.R. § 3.452(a) (2015). VA regulations provide for two types of apportionments. The first type is a "general" apportionment, which may be paid under the circumstances set forth in 38 C.F.R. § 3.450. All or any part of the compensation payable on account of any Veteran may be apportioned if the Veteran is not residing with his spouse or children, and the Veteran is not reasonably discharging his responsibility for the spouse's or children's support. 38 U.S.C.A. § 5307(a)(2) (West 2014); 38 C.F.R. § 3.450(a)(1)(ii) (2015). It is not necessary for the claimant to establish the existence of hardship in order to obtain an apportionment. 38 C.F.R. § 3.450 (2015); Hall v. Brown, 5 Vet. App. 294 (1993). The second type is a "special" apportionment. Under this type of apportionment, without regard to any other provision regarding apportionment, where hardship is shown to exist, compensation may be specially apportioned between the Veteran and his dependents on the basis of the facts of the individual case as long as it does not cause undue hardship to the other persons in interest. In determining the basis for special apportionment, consideration is to be given to such factors as the amount of VA benefits payable, other income and resources of the Veteran and those dependents in whose behalf the apportionment is claimed, and the special needs of the Veteran, his dependents and the apportionment claimants. The amount apportioned should generally be consistent with the total number of dependents involved. Ordinarily, apportionment of more than 50 percent of the Veteran's benefits would constitute undue hardship on him or her, while apportionment of less than 20 percent of his or her benefits would not provide a reasonable amount for any apportionee. 38 C.F.R. § 3.451 (2015). Both of these types of apportionments (either "general" or "special" apportionment) are payable to a spouse or dependent. 38 U.S.C.A. § 5307(a)(2) (West 2014); 38 C.F.R. §§ 3.450(a)(1)(ii), 3.451 (2015). In general, the term child of the veteran includes an unmarried person who is under the age of 18 years; or, who, before reaching the age of 18 years, became permanently incapable of self-support; or, who after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 C.F.R. § 3.57 (2015). The Board must assess the credibility and weight of all of the evidence to determine its probative value, account for which evidence it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the appellant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. The record shows that M.P. filed a claim for apportionment of the Veteran's VA compensation benefits for support of their dependent child, J.W. in November 2007. An apportionment in the amount of $300 was granted in April 2010. The Veteran contends in lay statements and hearing testimony that an apportionment is not warranted because M.P. is not his spouse, and because she is already receiving benefits from other sources in support of J.W., to include Social Security Administration (SSA) benefits, welfare, Section 8 housing, and VA medical insurance. During the hearing, the Veteran questioned whether an apportionment of benefits was payable to a M.P. because she is not his spouse. The Board finds, initially, that the applicable regulations for both a general apportionment, under 38 C.F.R. § 3.452, and a special apportionment, under 38 C.F.R. § 3.451, provide for the apportionment of benefits for a child of the Veteran if he is not residing with his children, or for his dependents, and a claim for apportionment is filed for or on behalf of the child. 38 C.F.R. §§ 3.451(a), 3.452 (2015). In this case, J.W. is not residing with the Veteran and a claim for the apportionment of benefits was filed on behalf of J.W. by his custodial parent, M.P. Accordingly, the Board finds that an apportionment of benefits can be made to M.P. for the support of J.W. In an April 2010 statement, the Veteran also reported that he contributed to J.W.'s support by purchasing diapers, clothing, shoes, and haircuts monthly, by providing $800.00 for the purchase of a bed, and by enrolling him for VA medical insurance benefits. He also reported that he provided additional monetary support as requested, and indicated in Board hearing testimony that he paid M.P.'s rent at some point in time. The Board finds that the Veteran is credible in identifying payments made for the support of J.W., and no court-ordered child support obligation has otherwise been identified by the record. Accordingly, the Board finds that the Veteran has been reasonably discharging his responsibility for support of his minor child (J.W.) at the time the M.P. submitted the application for apportionment. See 38 U.S.C.A. § 5307(a)(2) (West 2014); 38 C.F.R. § 3.450(a)(1)(ii) (2015). For these reasons, the Board finds no basis to award J.W. an apportionment of the Veteran's benefits pursuant to 38 C.F.R. § 3.450 (2015). The Board will next consider whether the grant of special apportionment of the Veteran's benefits for the support of J.W. was warranted. Where hardship is shown to exist, a Veteran's compensation may be specially apportioned to the Veteran's dependents as long as such apportionment would not cause undue hardship to other persons in interest including the veteran. 38 C.F.R. § 3.451. The provisions for special apportionment were apparently designed to provide for an apportionment in situations where a Veteran is reasonably discharging his responsibility for the support of any claimant who might be entitled to a "general" apportionment, but where special circumstances exist which warrant giving additional support to "dependents." The "benefit-of-the-doubt" rule is not for application in a contested claim such as this case because the benefit of the doubt cannot be given to both the Veteran and claimant simultaneously. Elias v. Brown, 10 Vet. App. 259, 263 (1997). After a review of all the evidence, lay and medical, the Board finds that M.P. has established undue financial hardship as to warrant the award of a special apportionment of the Veteran's VA benefits for the support of J.W. M.P. submitted a June 2008 income and expense statement along with supporting documentation to verify the amounts reported, to include a Social Security Administration (SSA) benefits statement, lease agreement, electric and gas bills, and accounts documenting child support payments. The June 2008 income and expense statement, identified a total monthly income of $1139.00, to include $735.00 received from SSA and $404.00 a month in child support for her other children. M.P. identified monthly expenses for herself and J.W. that included: $643.00 rent, $550.00 for food, $250.00 for utilities, $31.00 for telephone, $300.00 for clothing, $150.00 for other expenses, to include diapers, wipes, and hygiene items. Accordingly, the Board finds that M.P. had monthly expenses of approximately $1924.00. The Board finds that in June 2008, M.P.'s monthly expenses exceeded monthly income by $785.00. An updated February 2010 income and expense statement, identified a total monthly income of $1442.00, to include $777.00 received from SSA and $665.00 a month in child support for her other children. M.P. identified monthly expenses for herself and J.W. that included: $662.00 rent, $650.00 for food, $220.00 for utilities, $100.00 for telephone, $300.00 for clothing, $100 for a car note, $260.00 for other expenses, to include diapers, wipes, gas, and hygiene items. Accordingly, the Board finds that M.P. had monthly expenses of approximately $2292.00. The Board finds that in June 2008, M.P.'s monthly expenses exceeded monthly income by $850.00. June 2008 and February 2010 income and expense statements and supporting documentation shows that necessary expenses, to include expenses for rent, clothing, and food, exceeded M.P.'s income such that financial hardship has been demonstrated. While the Veteran indicated in an April 2010 notice of disagreement that M.P. was in receipt of assistance from multiple sources, to include $777.00 from SSA, Section 8 housing benefits, VA medical insurance, and welfare, the Board finds that sources of income have been disclosed by M.P. A lease agreement identifies M.P.'s contractual obligation on her lease outside of any Section 8 housing subsidy, as such payments are made directly to the landlord by the Department of Housing and Urban Development. Medical expenses for J.W. were not otherwise identified by M.P. Because M.P. has submitted documentation to verify the amounts reported in her income and expense statements, the Board finds such information has been credibly reported. Because, M.P.'s expenses exceeded her income in 2008 and 2010, the Board finds that hardship or individual need has been demonstrated by J.W. and his custodial parent to warrant the award of a special apportionment, so long as such an apportionment would not result in a financial hardship to the Veteran. In a June 2008 income and expense statement, the Veteran identified receiving $1150.00 in Social Security Disability benefits and $2557.00 in VA disability benefits. Accordingly, the Board finds that the Veteran had a monthly income of approximately $2672.00 a month in 2008. On the Veteran's income and expense statement, he identified monthly expenses that included: $560.00 for rent or house payments, $500.00 for food, $75.00 for utilities, $125.00 for telephone bills, $250.00 for clothing, and $250.00 in other expenses identified as child support. Accordingly, the Board finds that the Veteran had monthly expenses of approximately $1760.00. The Board finds that in June 2008, the Veteran's monthly income exceeded monthly expenses by $912.00. In a February 2010 income and expense statement, the Veteran identified receiving $1459.00 in Social Security Disability benefits and $2820.00 in VA disability benefits. Accordingly, the Board finds that the Veteran had a monthly income of approximately $4279.00 a month in 2010. On the Veteran's income and expense statement, he identified monthly expenses that included: $560.00 for rent or house payments, $600.00 for food, $150.00 for utilities, $125.00 for telephone bills, $250.00 for clothing, and $96.50 in Medicare Part B contributions. Accordingly, the Board finds that the Veteran had monthly expenses of approximately $1781.50. The Board finds that in June 2008, the Veteran's monthly income exceeded monthly expenses by $2497.50. Because June 2008 and February 2010 income and expense statements show that the Veteran had excess income over his expenses in the amount of $912.00 and $2497.50, respectively, the Board finds that financial hardship has not been established on the part of the Veteran. With respect to the amount of the apportionment, regulations provide that the amount apportioned should generally be consistent with the total number of dependents involved. Ordinarily, apportionment of more than 50 percent of the Veteran's benefits would constitute undue hardship on him or her, while apportionment of less than 20 percent of his or her benefits would not provide a reasonable amount for any apportionee. 38 C.F.R. § 3.451. In this case, approximately 10 percent of the Veteran's VA benefits have been apportioned for the support of J.W. The Board finds that this amount is proper given the additional amounts received from SSA for the support of J.W., and the Board finds that the apportionment of $300.00 a month does not result in undue hardship on the Veteran. For the reasons discussed above, the Board finds that an apportionment of the Veteran's VA benefits does not result in a financial hardship to the Veteran. Conversely, hardship or individual need has been demonstrated by J.W. and his custodial parent to warrant a special apportionment of the Veteran's VA benefits under the provisions of 38 C.F.R. § 3.451. Accordingly the Board finds that the apportionment of the Veteran's VA compensation benefits in the amount of $300.00 for the support of his dependent child, J.W. was proper. ORDER The apportionment of the Veteran's VA compensation benefits in the amount of $300 for the support of his dependent child, J.W. was proper. ____________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs