Citation Nr: 0400838	
Decision Date: 01/09/04    Archive Date: 01/22/04

DOCKET NO.  96-46 953	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an increased apportionment of the veteran's VA 
disability compensation benefits. 


REPRESENTATION

Appellant represented by:	The American Legion
Appellee represented by	Not represented


WITNESS AT HEARING ON APPEAL

The veteran


ATTORNEY FOR THE BOARD

M. E. Larkin, Counsel


INTRODUCTION


The veteran, the appellant, served on active duty from August 
1954 to January 1969.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal from a September 1998 decision of the RO which 
increased granted the appellee's claim for an increased 
apportionment in the amount of $200 per month.  A notice of 
disagreement was received in September 1998 and the RO issued 
a statement of the case (SOC) was issued in February 2000.  
The SOC was reissued to both parties in November 2001.  A 
substantive appeal was received from the veteran later that 
same month.  

This is a contested claim since allowance of the appeal would 
result in a loss of benefits to the veteran's dependent 
child.  See 38 C.F.R. § 19.100 (2003).  The record in this 
case shows the RO has fully complied with the notice 
procedures applicable in such cases.

In February 2003, the appellee submitted an claim for 
increased apportionment.  The RO denied that claim in April 
2003 and provided notice to both parties that same month.  
Neither party appealed that decision and thus, the issue 
before the Board is limited to that noted on the title page. 


FINDINGS OF FACT

1.  The veteran is currently entitled to monthly compensation 
in the amount of $2408, of which $200 is withheld.  

2.  Both the appellee and veteran's reported monthly expenses 
exceed their income.  

3.  Failure to increase the apportioned amount to the 
appellee on behalf of the veteran's dependent child alone 
would not cause the appellant financial hardship.


CONCLUSION OF LAW

Entitlement to an increase in the apportionment of the 
veteran's VA compensation benefits for the veteran's 
dependent child is not established.  38 U.S.C.A. §§ 5103, 
5103A, 5107, 5307(a)(2) (West 2002); 38 C.F.R. §§ 
3.450(a)(1)(ii), 3.451, 3.458 (2003).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

At the outset, the Board notes the enactment of the Veterans 
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 
114 Stat. 2096 (2000), in November 2000.  See 38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, and 5107 (West 2002).  To 
implement the provisions of the law, VA promulgated 
regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) 
(codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) 
(2003)).  The VCAA and its implementing regulations include, 
upon the submission of a substantially complete application 
for benefits, an enhanced duty on the part of VA to notify a 
claimant of the information and evidence needed to 
substantiate a claim, as well as the duty to notify the 
claimant what evidence will be obtained by whom.  38 U.S.C.A. 
§ 5103(a); 38 C.F.R. § 3.159(b).  In addition, they define 
the obligation of VA with respect to its duty to assist a 
claimant in obtaining evidence.  38 U.S.C.A. § 5103A; 
38 C.F.R. § 3.159(c).

Although the record does not show that both parties were 
fully notified of the VCAA provisions, the Board finds that, 
in the circumstances of this case, a remand would serve no 
useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 
546 (1991); Sabonis v. Brown, 6 Vet. App. 426 (1994).  The 
determinative factors in this case involve facts which have 
not been placed in dispute.  Consequently, advising the 
parties what information they would be responsible for 
submitting to change those facts would be a costly and time-
consuming exercise.  Both parties have had ample notice of 
the applicable law and regulations, including in the February 
2000 statement of the case (which was reissued to both 
parties in November 2001).  The appellee was notified of the 
proceedings, as mandated by contested case procedures.  
Furthermore, the law and regulations, themselves, spell out 
the parties' responsibilities in evidence development.  For 
example, an affirmative showing of hardship presumably could 
only be presented by the party alleging the hardship.  Under 
these circumstances, and with expediency as a consideration, 
but not the determinative factor, the Board finds that 
further notice would add to the record only the fact that the 
parties were advised of the citations to the VCAA, not any 
changes in the substance of the information provided to the 
parties. 

As a final preliminary matter, the Board notes that 
additional financial information was submitted by the veteran 
in April 2003; however, the RO did not issue a supplemental 
statement of the case.  Given that the disposition herein is 
favorable to the veteran, the Board finds that the veteran is 
not prejudiced by the Board's consideration of this 
information, in the first instance.  See Bernard v. Brown, 4 
Vet. App. 384, 394 (1995).  



I.  Background

In December 1996, the RO increased the rating for the 
veteran's service-connected left knee disability to 30 
percent and he was notified that beginning December 1, 1996, 
he would received $274 per month as compensation.  

In March 1997, the appellee submitted a claim for 
apportionment of the veteran's compensation benefits on 
behalf of the veteran's child.  In April 1997, the RO 
notified the veteran of that claim and requested that he 
submit certain information regarding his income and expenses.  
The RO requested the same information from the appellee.  

In May 1997, the veteran was notified that his wife had been 
added as a dependent and effective December 1, 1996, his 
monthly compensation would be $331.

In a May 1997 reply to the RO's request, the veteran noted 
his monthly income was VA compensation; however, he did not 
indicate the amount.  He indicated that questions regarding 
the value of any property, a spouse's monthly income and what 
hardship, if any, would exist if his benefits were 
apportioned were "not applicable."  He reported monthly 
expenses as follows:  rent, $465; food, $350; utilities 
(gas), $100; electric, $100; water, $100; telephone, $40; and 
credit card debt, $40.  The veteran also indicated that he 
has paid support for the child when he is able, has helped to 
buy clothes and has had the child on weekends and part of the 
summer.

In June 1997, the RO awarded the appellee an apportioned 
share, in the amount of $23 per month, of the veteran's 
benefits.  Both the appellant and appellee were notified of 
that action and their appellate rights by letter dated in 
June 1997.

In July 1997, the veteran was awarded a temporary total 
rating and he was notified that, effective June 1, 1997, he 
was entitled to $2115, of which $59 would be withheld.  
Effective July 1, 1998, he was entitled to $331, of which $23 
was withheld.  

In June 1998, the RO determined that the veteran's service-
connected left knee disability had increased in severity and 
he was assigned a 60 percent rating.  The veteran was 
notified that, effective July 1, 1998, he was entitled to a 
monthly payment of $834, of which $23 was withheld as 
apportionment for his son.  The veteran was notified that he 
was receiving additional benefits for his spouse.  

In June 1998, the appellee submitted a claim for an increased 
apportionment.  She reported an annual income of $11,000 
(including wages from her part-time job and  monthly payments 
received on behalf of her two children).  Monthly expenses of 
$35.68 for water, $355 rent, $70 electric, $74 gas, $60 
phone, and $300 food.  She also noted that she pays for 
clothes and transportation to work.  The appellee indicated 
that she does not receive child support from the veteran, but 
he indicated at a child support hearing that he had requested 
VA to apportion $200 per month to the child.  

In letters dated in June 1998, the RO contacted both the 
appellant and appellee and requested that they submit income 
and expense information  The appellant was further notified 
that $200 per month would be withheld, effective September 1, 
1998, pending a decision on the apportionment.  He was 
instructed to submit the information within 60 days of the 
date of the letter or a decision would be made based on the 
evidence of record.

In a September 1999 Special Apportionment Decision, the RO 
noted that the veteran did not reply to the June 1998 request 
for information and the RO had no knowledge of his monthly 
expenses or of his monthly income, other than his VA 
compensation.  It was noted that the appellee had not 
responded to the request for information; however, she had 
included pertinent information in her claim for increase.  
The RO concluded that, based on the evidence of record, it 
would not create a hardship for the veteran to increase the 
apportioned amount.  In letters dated in September 1998, the 
RO notified the veteran and appellee of the increased 
apportionment and their appellate rights. 

In September 1998, the veteran submitted a statement 
requesting that the apportionment "be stopped" because his 
disability had worsened.  The veteran reported that his 
monthly expenses totaled $1300.  He submitted a Financial 
Status Report noting monthly income of $811 and monthly 
expenses of $1300.

In a November 1998 letter to the veteran, the RO asked that 
he submit information regarding the amount he was 
contributing, on a monthly basis, to his child's support.  In 
a November 1998 letter to the appellee, the RO notified her 
that it was reconsidering the apportioned amount and proposed 
to reduce that amount to $50 per month, based on additional 
information received from the veteran.  In January 1999, the 
RO informed the appellee that the veteran had not responded 
to its requests for additional information and the 
apportioned amount would not be reduced. 

When the Board initially reviewed the veteran's appeal on 
other issues in October 1999, it noted that the veteran had 
submitted an NOD as to the increased apportionment and, on 
remand, the RO was instructed to issue an SOC.  The RO issued 
an SOC to the veteran in February 2000 and he submitted a 
substantive appeal later that same month.  There is no copy 
of an SOC sent to the appellee in February 2000.  In November 
2001, the RO noted that the veteran reported that he had 
never received an SOC and, thus, issued SOCs to both parties.  

In November 1999, the RO granted a temporary total rating, 
effective from October 1, 1999 to February 1, 2000.  In March 
2000, the RO granted another temporary total rating, 
effective from November 1, 1999 to December 1, 2000.  The 
veteran was notified that the current award would pay him at 
the 100 percent rate for a veteran, spouse and one child (on 
whose behalf the apportionment claim was made).  The RO noted 
that the correct amount of monthly compensation due the 
veteran was as follows:  $844, of which $200 is withheld, 
effective from October 1, 1999; $2186, of which $200 is 
withheld, effective November 1, 1999; $2237, of which $2000 
is withheld, effective December 1, 1999; $863, of which $200 
is withheld, effective December 1, 2000.  

By subsequent ratings actions, the RO granted service 
connection for additional disabilities.  In August 2002, the 
veteran was notified that, effective May 1, 2001, his monthly 
entitlement was $1453, of which $200 was withheld.  As of 
December 1, 2001, the veteran was entitled to $1490, of which 
$200 was withheld.  

In November 2002, the veteran submitted a copy of his son's 
birth certificate, showing the veteran as the father, and 
argued that the paternity statement is not valid.  

In a February 2003 claim for an increased apportionment, the 
appellee reported that she pays a bimonthly medical insurance 
premium of $178.02.  In February 2003, the RO contacted the 
both the appellee and veteran and requested that they submit 
financial information necessary to decide the most recent 
claim.  

The appellee submitted updated financial information in March 
2003.  She reported a monthly gross income of $1806.20 and a 
"total net pay" per month of $1704.  The appellee reported 
the following monthly expenses:  rent, $575; food, $350; 
utilities, $565; clothing and school expenses $825 (because 
of special uniforms); medical, $178.02, plus co-pays of $50 
per doctor visit; car payment, $315; insurance, $153; child 
care $500.  The appellee calculated her month expenses to be 
$2061.02.  

The veteran did not respond to the RO's request for 
information. 

In an April 2003 Special Apportionment Decision, the RO 
determined that, although the appellee's monthly expenses 
exceed her income, the apportioned amount of $200 exceeds the 
additional amount payable for a child (noted to be $90 at the 
100 percent disability compensation rate).  Thus, the claim 
for an increased apportionment was denied.  As noted in the 
Introduction, neither party expressed a timely disagreement 
with that decision.  

In a statement received at the RO in March 2003, but 
associated with the claims file after the April 2003 
determination, the veteran asserted that the appellee's claim 
was based on fraud.  The veteran submitted the following 
information regarding monthly expenses:  housing, $800; car 
payment, $600; life insurance, $43; auto insurance, $220, bi-
monthly; electric, $125; food, $300; cable, $75; personal 
bills, $500; auto gas, $35 per week; miscellaneous, $150.  He 
reported debt of $2938.  The veteran reported income as 
follows: VA compensation, $1310; veteran's Social Security, 
$427; spouse's Social Security, $550.  The veteran submitted 
a copy of a credit report in April 2003-which the RO also 
noted had been associated with the claims file after the 
Special Apportionment Decision.  

In June 2003, the RO granted special monthly compensation.  
The veteran was notified that, effective January 1, 2001, he 
was entitled to a monthly payment of $2567, of which $200 was 
withheld.  Effective May 1, 2001, he was entitled to $2315, 
of which $200 was withheld.  That amount was reduced to $2376 
on December 1, 2001 and $2408, as of December 1, 2002, of 
which $200 was withheld each month.  The RO informed the 
veteran that he was being paid as a veteran with two 
dependents, his wife and the child who was receiving the 
apportioned amount.  

II.  Analysis

A claim for an apportionment is a "contested claim" and is 
subject to special procedural regulations as set forth in 38 
C.F.R. §§ 19.100, 19.101, and 19.102.  Contested claims 
procedures have been followed in this case.  In particular, 
as noted hereinabove, each party has been provided notices 
and determinations related to the contested claim, and both 
parties have been advised of the applicable laws and 
regulations.

The law provides that all or any part of a veteran's 
compensation may be apportioned if the veteran's children are 
not residing with him and the veteran is not reasonably 
discharging his responsibility for the children's support.  
38 U.S.C.A. § 5307; 38 C.F.R. §§ 3.450, 3.452.  Without 
regard to any other provision regarding apportionment, where 
hardship is shown to exist, a veteran's compensation may be 
specially apportioned between the veteran and his 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, 3.453.  Furthermore, in determining the rate 
of apportionment, consideration will be given to such factors 
as the amount of VA benefits payable, other resources and 
income of the veteran and the dependents on whose behalf 
apportionment is claimed; and special needs of the veteran, 
his dependents, and the apportionment claimants.  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 the veteran's 
benefits would not provide a reasonable amount for any 
apportionee.  38 C.F.R. § 3.451. 

The Board has considered the evidence of record and the 
contentions of both the veteran and appellee, but finds that 
the evidence of record does not support an increase in the 
amount of apportionment to the appellee.  The Board notes 
that the veteran is receiving additional benefits for his 
dependent child, and the amount of the apportionment appears 
to be contributing to the support of that child.  He is 
currently entitled to receive $2408 per month, of which he is 
receiving $2208.  The currently apportioned amount of $200 
represents less than 20 percent of his compensation benefits, 
but the Board notes that it is more than the additional 
amount payable for a dependent child.  The Board finds that, 
although the appellee's expenses exceed her income, she is 
receiving a reasonable amount of benefits from the veteran.  
Failure to increase the apportioned amount did not cause her 
financial hardship.  It is not demonstrated by the most 
current information that financial hardship exists solely on 
the basis of her custody of the veteran's dependent child.  A 
review of the financial information shows that the appellee 
had expenses that were not directly attributable to the 
support and maintenance of that child.  Thus, the Board finds 
that entitlement to an increased apportionment is not 
warranted.  


ORDER

An increased apportionment of the veteran's VA disability 
compensation is denied. 



	                        
____________________________________________
	JACQUELINE E. MONROE
	Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is 
the final decision for all issues addressed in the "Order" section of the 
decision.  The Board may also choose to remand an issue or issues to the 
local VA office for additional development.   If the Board did this in your 
case, then a "Remand" section follows the "Order."  However, you cannot 
appeal an issue remanded to the local VA office because a remand is not a 
final decision. The advice below on how to appeal a claim applies only to 
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do 
anything.  We will return your file to your local VA office to implement 
the BVA's decision.  However, if you are not satisfied with the Board's 
decision on any or all of the issues allowed, denied, or dismissed, you 
have the following options, which are listed in no particular order of 
importance: 
?	Appeal to the United States Court of Appeals for Veterans Claims 
(Court)
?	File with the Board a motion for reconsideration of this decision
?	File with the Board a motion to vacate this decision 
?	File with the Board a motion for revision of this decision based on 
clear and unmistakable error. 
Although it would not affect this BVA decision, you may choose to also: 
?	Reopen your claim at the local VA office by submitting new and 
material evidence. 
There is no time limit for filing a motion for reconsideration, a motion to 
vacate, or a motion for revision based on clear and unmistakable error with 
the Board, or a claim to reopen at the local VA office.  None of these 
things is mutually exclusive - you can do all five things at the same time 
if you wish.  However, if you file a Notice of Appeal with the Court and a 
motion with the Board at the same time, this may delay your case because of 
jurisdictional conflicts. If you file a Notice of Appeal with the Court 
before you file a motion with the BVA, the BVA will not be able to consider 
your motion without the Court's permission. 

How long do I have to start my appeal to the Court?  You have 120 days from 
the date this decision was mailed to you (as shown on the first page of 
this decision) to file a Notice of Appeal with the United States Court of 
Appeals for Veterans Claims.  If you also want to file a motion for 
reconsideration or a motion to vacate, you will still have time to appeal 
to the Court.  As long as you file your motion(s) with the Board within 120 
days of the date this decision was mailed to you, you will then have 
another 120 days from the date the BVA decides the motion for 
reconsideration or the motion to vacate to appeal to the Court.  You should 
know that even if you have a representative, as discussed below, it is your 
responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?  
Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for 
filing a Notice of Appeal, the filing fee (or a motion to waive the filing 
fee if payment would cause financial hardship), and other matters covered 
by the Court's rules directly from the Court. You can also get this 
information from the Court's web site on the Internet at 
www.vetapp.uscourts.gov, and you can download forms directly from that 
website.  The Court's facsimile number is (202) 501-5848. 

To ensure full protection of your right of appeal to the Court, you must 
file your Notice of Appeal with the Court, not with the Board, or any other 
VA office. 

How do I file a motion for reconsideration? You can file a motion asking 
the BVA to reconsider any part of this decision by writing a letter to the 
BVA stating why you believe that the BVA committed an obvious error of fact 
or law in this decision, or stating that new and material military service 
records have been discovered that apply to your appeal. If the BVA has 
decided more than one issue, be sure to tell us which issue(s) you want 
reconsidered. Send your letter to: 
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

VA 
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2003 
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CONTINUED



Remember, the Board places no time limit on filing a motion for 
reconsideration, and you can do this at any time. However, if you also plan 
to appeal this decision to the Court, you must file your motion within 120 
days from the date of this decision. 

How do I file a motion to vacate? You can file a motion asking the BVA to 
vacate any part of this decision by writing a letter to the BVA stating why 
you believe you were denied due process of law during your appeal. For 
example, you were denied your right to representation through action or 
inaction by VA personnel, you were not provided a Statement of the Case or 
Supplemental Statement of the Case, or you did not get a personal hearing 
that you requested. You can also file a motion to vacate any part of this 
decision on the basis that the Board allowed benefits based on false or 
fraudulent evidence.  Send this motion to the address above for the 
Director, Management and Administration, at the Board.  Remember, the Board 
places no time limit on filing a motion to vacate, and you can do this at 
any time. However, if you also plan to appeal this decision to the Court, 
you must file your motion within 120 days from the date of this decision. 

How do I file a motion to revise the Board's decision on the basis of clear 
and unmistakable error? You can file a motion asking that the Board revise 
this decision if you believe that the decision is based on "clear and 
unmistakable error" (CUE).  Send this motion to the address above for the 
Director, Management and Administration, at the Board. You should be 
careful when preparing such a motion because it must meet specific 
requirements, and the Board will not review a final decision on this basis 
more than once. You should carefully review the Board's Rules of Practice 
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified 
representative before filing such a motion. See discussion on 
representation below. Remember, the Board places no time limit on filing a 
CUE review motion, and you can do this at any time. 

How do I reopen my claim? You can ask your local VA office to reopen your 
claim by simply sending them a statement indicating that you want to reopen 
your claim.  However, to be successful in reopening your claim, you must 
submit new and material evidence to that office. See 38 C.F.R. 3.156(a). 

Can someone represent me in my appeal?  Yes. You can always represent 
yourself in any claim before VA, including the BVA, but you can also 
appoint someone to represent you.  An accredited representative of a 
recognized service organization may represent you free of charge.  VA 
approves these organizations to help veterans, service members, and 
dependents prepare their claims and present them to VA. An accredited 
representative works for the service organization and knows how to prepare 
and present claims. You can find a listing of these organizations on the 
Internet at: www.va.gov/vso.  You can also choose to be represented by a 
private attorney or by an "agent." (An agent is a person who is not a 
lawyer, but is specially accredited by VA.) 

If you want someone to represent you before the Court, rather than before 
VA, then you can get information on how to do so by writing directly to the 
Court.  Upon request, the Court will provide you with a state-by-state 
listing of persons admitted to practice before the Court who have indicated 
their availability to represent appellants.  This information is also 
provided on the Court's website at www.vetapp.uscourts.gov. 

Do I have to pay an attorney or agent to represent me?  Except for a claim 
involving a home or small business VA loan under Chapter 37 of title 38, 
United States Code, attorneys or agents cannot charge you a fee or accept 
payment for services they provide before the date BVA makes a final 
decision on your appeal. If you hire an attorney or accredited agent within 
1 year of a final BVA decision, then the attorney or agent is allowed to 
charge you a fee for representing you before VA in most situations.  An 
attorney can also charge you for representing you before the Court.  VA 
cannot pay fees of attorneys or agents. 

Fee for VA home and small business loan cases:  An attorney or agent may 
charge you a reasonable fee for services involving a VA home loan or small 
business loan.  For more information, read section 5904, title 38, United 
States Code. 

In all cases, a copy of any fee agreement between you and an attorney or 
accredited agent must be sent to: 

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for 
reasonableness, or you or your attorney or agent can file a motion asking 
the Board to do so. Send such a motion to the address above for the Office 
of the Senior Deputy Vice Chairman at the Board. 


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