Citation Nr: 0321746 Decision Date: 08/28/03 Archive Date: 09/04/03 DOCKET NO. 95-28 984A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Whether entitlement to an apportionment of the veteran's Department of Veterans Affairs (VA) disability compensation benefits in the amount of $300 for the veteran's son as a helpless child should be terminated. (The issue of whether the recognition of the son as the helpless child of the veteran was proper is the subject of a separate Board decision.) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran had active service from June 1961 to October 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from Special Apportionment decisions by the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA) which granted the veteran's son an apportionment in the amount of $300. In April 1997, the Board remanded this case to the RO for further clarification and development. Specifically, the Board pointed out that this is a contested claim. The veteran is one party. He is the party appealing the action of the RO. The other party was his son's mother, however, since the son had not been deemed incompetent, he was the proper party to the claim, not his mother. Upon remand, the veteran's son indicated that he was the other party to the claim and he was provided the necessary notifications regarding the claim on appeal. Thus, contested claims procedures have been followed. In a separate final Board decision, the Board upheld an RO determination that the veteran's son was a helpless child. FINDINGS OF FACT 1. The veteran's son was born in December 1964; he has been determined to be a helpless child. 2. The veteran stopped residing with his son in January 1993. 3. The veteran was not reasonably discharging his responsibility to his son. CONCLUSION OF LAW The apportionment of the veteran's VA disability compensation benefits to his son as a helpless child in the amount of $300 was proper and is not terminated. 38 U.S.C.A. § 5307 (West 2002); 38 C.F.R. §§ 3.450 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) There has been a significant change in the law during the pendency of this appeal with the enactment of the VCAA. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). To implement the provisions of the law, the VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)). The amendments became effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(b) which became effective August 29, 2001. Except for 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. The Act and implementing regulations eliminate the concept of a well-grounded claim, redefine the obligations of VA with respect to the duty to assist, and supersede the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (per curiam order) (holding that VA cannot assist in the development of a claim that is not well grounded). First, VA has a duty to notify the parties to the claim and their respective representatives, if represented, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The discussion in the RO's May and December 1994 decisions, March 1995 decision, August 1995 statement of the case, April 1997 Board remand decision, March 1998 decision, June 1999 and February 2003 supplemental statements of the case, informed the parties to the claim of the information and evidence needed to substantiate his claim and complied with VA's notification requirements. In addition, both parties were sent letters discussing VCAA. The letters addressed VA's duty to notify, duty to assist, and instructed the parties of when and where to send information and/or evidence. In addition, the veteran himself was sent numerous letters regarding the evidence that was needed to support his appeal. The aforementioned decisions, statement of the case, supplemental statement of the case, VCAA letters, and RO letters, satisfied the directives of VCAA. Second, VA has a duty to assist the parties in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. In the instant case, VA has made efforts to develop the record. Efforts were made to obtain all pertinent records bearing on the claim to include financial information. In sum, the Board finds that the record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. There is no indication that there is any additional relevant competent evidence to be obtained either by the VA or by the parties, and there is no other specific evidence to advise him to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). As such, the Board finds that the development requirements of the VCAA have also been met. VA has done everything reasonably possible to assist the veteran. In June 1993, the mother of the veteran's son applied for an apportionment of the veteran's VA disability benefits. She stated that the veteran had abandoned the family in January 1993, but had not supplied support payments since May 1993. She indicated that her monthly income was $720 and her monthly expenses to include her son's expenses were $2893. She also indicated that the veteran's monthly income was $3268. Thereafter, the veteran sent a letter to VA in which he stated that during the period in question, he was hospitalized. He alleged that during his hospitalization, his son's mother kept his VA and Social Security Administration payments which totalled $14,334. She also purchased a new car, talked him into cashing in various assets, and obtained new credit cards in his name. When he was released from the hospital, he stated that she left him. Currently, the veteran indicated that his bills were overdue and he was living with his mother so that he could pay the overdue bills. In a January 1994 letter, the son's mother indicated that the veteran had in fact left her and their son the year before and that they were left with $2500 in debt. She generally disputed his allegations. She indicated that their family income currently consisted of Social Security Administration disability payments for both her and her son as they were both disabled with muscular dystrophy. She indicated that they were unable to pay for basic necessities and were relying upon relatives for assistance. She maintained that the veteran had filed for divorce and had actually admitted to his past actions. In a May 1994 Special Apportionment Decision, the RO indicated that the veteran had not provided the requisite financial information. Although he had requested a hearing, he had canceled that request. In addition, it was indicated that the veteran's son and his mother could not meet their monthly expenses. The RO determined that an apportionment was warranted for both the son and his mother, who was still married to the veteran. The RO indicated that when the divorce became final, the apportionment would be for the son only, in the amount of $300. Later that month, the divorce was finalized. In May 1994, the veteran requested that the apportionment for his son be terminated. He asserted that the son was not a helpless child and that the apportionment was causing the veteran financial hardship. At this juncture, the Board notes that, as noted in the introductory section, the Board has determined that the son is a helpless child for VA purposes. Thus, the veteran's arguments in that regard are not availing. Ina June 1994 decision, the veteran's ex-wife, the veteran's mother, was removed from the apportionment award based on the divorce. In August 1994, a financial status report was received from the veteran. In that report, the veteran listed his monthly income from VA and the Social Security Administration to be $3016. His monthly expenses were listed as $1025. No installment contracts or outstanding debts were listed. In a December 1994 Special Apportionment decision, the RO determined that the prior award of $300 should be continued. In March 1995, the RO again confirmed the prior decision. In August 1995, the son's mother informed VA that the veteran had received an inheritance from his mother of between $500,000 and $650,000. In September 1995, the veteran indicated that his son was receiving $400 per month from the Social Security Administration. In December 1996, the veteran married V.G., who is his current spouse. In June 1997, the veteran's son indicated that he wanted to retain his apportionment. He indicated that his income consisted of the $300 apportionment and payments form the Social Security Administration. He also indicated that his unreimbursed medical expenses were substantial due to his disability. He reiterated that the veteran had received an inheritance that he believed to have been between $250,000 to $300,000. In September 1997, financial information was received from the son's mother. She indicated that their family monthly income was $1851 consisting of payments from the Social Security Administration for both the mother and the son and from alimony. The son's income alone was $387 from Social Security Administration benefits. In addition, he was receiving the $300 apportionment. The son's monthly expenses were $686 for him alone. However, the mother indicated that she had separated his expenses out of her expenses, which she also listed. Thereafter, also in September 1997, a financial status report was received from the veteran. Total income was listed as $3412 and total expenses were listed as $2841. One installment creditor was listed, this debt was incurred in 1996. The veteran listed no assets from an inheritance. In October 1997, a financial report was received from the son. He indicated that his monthly income, to include the apportionment, approximated his monthly expenses. In December 1997, the veteran indicated that he needed all of his VA benefits for his new family's support and that none should be allotted to his son. Under 38 U.S.C.A. § 5307, if the veteran's child is not in the veteran's custody, all or any part of the compensation or pension payable on account of the veteran may be apportioned as may be prescribed by the Secretary. VA regulations provide for two types of apportionments. A "general" apportionment may be paid under the circumstances set forth in 38 C.F.R. § 3.450. More specifically, 38 C.F.R. § 3.450(a)(1)(ii) provides that an apportionment may be paid if the veteran's child is not in the veteran's custody and the veteran is not reasonably discharging his responsibility for the child's' support. It is not necessary for the claimant to establish the existence of hardship in order to obtain an apportionment under 38 C.F.R. § 3.450 (1994). See Hall v. Brown, 5 Vet. App. 294 (1993). The second type of apportionment is a "special" apportionment which may be paid under the circumstances set forth in 38 C.F.R. § 3.451. That regulation provides that, without regard to any other provision regarding apportionment, where hardship is shown to exist, compensation may be apportioned between the veteran and his or her 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 or her dependents and the apportionment claimants. 38 C.F.R. § 3.451 further provides that apportionment of more than 50 percent of the veteran's benefits is ordinarily considered to constitute undue hardship on him or her while apportionment of less than 20 percent of his or her benefits is ordinarily considered insufficient to constitute a reasonable basis for any apportionee. The initial issue is whether the veteran was reasonably discharging his responsibility for his son's support. The record shows that in 1993, the son's parents separated. Although both the veteran and his ex-wife have made allegations regarding the nature of the separation, it is not significant for determining whether the apportionment was warranted. What matters, as noted, is whether the veteran was reasonably discharging his responsibility for his son's support. In May 1993, the son's mother filed for an apportionment on his behalf and the son has continued that action. After the separation occurred in early 1993, the veteran was not providing any support for his son. The veteran does not contend that he was paying any support. The veteran has admitted that he pays no child support. The veteran's sole argument is that he should not be required to pay any support for the son because the son is not a helpless child. However, as already noted, the Board has determined that he is a helpless child. The veteran maintains that all of his income should be used for his current family only. The Board does not agree. The Board finds that the veteran was not reasonably discharging his responsibility for his son's support because he was not providing any support for him. The RO has determined that the amount of $300 for the son is appropriate. Accordingly, the Board finds that a general apportionment of the veteran's VA disability compensation in the amount of $300 for his son as a helpless child was appropriate. Thus, the Board concludes that the apportionment of the veteran's VA disability compensation benefits to his son as a helpless child should not be terminated. ORDER The apportionment of the veteran's VA compensation benefits to his son as helpless child in the amount of $300, is proper and is not terminated. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.