Citation Nr: 1126980 Decision Date: 07/20/11 Archive Date: 07/29/11 DOCKET NO. 07-36 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to apportion of the Veteran's disability compensation on behalf of his child, M.B. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Whitehead, Associate Counsel INTRODUCTION The Veteran had active service from September 1975 until November 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In the decision below, the appellant's claim for an apportionment of the Veteran's VA benefits on behalf of their child, M.B. is denied. As described below, M.B. is over the age of 18, and therefore may file a claim for apportionment on his own behalf. The RO should inform M.B. that if he is still attending an approved school, he may request an apportionment of his father's compensation benefits. The Board also notes that M.B. was awarded VA educational benefits as of May 2008. In this regard, VA regulations provides that the payment of both a dependency allowance as part of a Veteran's disability compensation benefits and educational assistance under Chapter 35 constitutes a duplication of benefits that is strictly prohibited after the child has elected to receive the latter benefit. See 38 U.S.C.A. § 3562; 38 C.F.R. §§ 3.667(f), 3.707, 21.3023. Thus, the RO should inform M.B. that he must elect whether he wishes to receive an apportionment instead of any educational assistance benefits. FINDINGS OF FACT 1. The appellant is the mother of M.B., who has been legally recognized as a child of the Veteran. 2. In August 2006, the appellant filed a claim for an apportionment of the Veteran's VA benefits on behalf of the Veteran's son, M.B. 3. At the time the August 2006 claim for apportionment, the Veteran's son M.B. was over the age of 18; the evidence of record did not show that M.B. was enrolled full-time in an approved school. CONCLUSION OF LAW The requirements for an apportionment of the Veteran's VA compensation benefits on behalf of his son have not been met. 38 U.S.C.A. §§ 5107, 5307 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.57, 3.159, 3.450 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Nonetheless, this appeal concerns a benefit provided under Chapter 53, Title 38, United States Code. As such, the rules governing VA notice and assistance upon receipt of a claim for benefits, as outlined by the VCAA and in the provisions listed above, do not apply to claims for benefits provided under chapters other than Chapter 51. However, VA rules include special procedural requirements for simultaneously contested claims, such as apportionment. See 38 C.F.R. §§ 19.101, and 19.102. Upon the filing of a notice of disagreement (NOD) in a simultaneously contested claim, all interested parties and their representatives are to be furnished a copy of the statement of the case (SOC). See 38 C.F.R. § 19.101. When a substantive appeal is filed in a simultaneously contested claim, the content of the substantive appeal is furnished to the other contesting parties, to the extent that it contains information directly affecting the payment or potential payment of the benefit which is the subject of the contested claim. See 38 U.S.C.A. §7105A; 38 C.F.R. § 19.102. In the present case, a copy of the November 2006 administrative decision was sent to both parties. The appellant filed a notice of disagreement in January 2007. Subsequently, the RO issued an October 2007 Statement of the Case and a copy was provided to both the appellant and the Veteran. Thereafter, in November 2007, the appellant submitted a timely Appeal To Board Of Veterans' Appeals (VA Form 9). A copy of that VA Form 9, or a summary of the content, was not provided to the Veteran. See 38 C.F.R. § 19.102. Furthermore, the appellant requested a hearing (RO hearing) and testified before a Decision Review Officer in connection with her claim in May 2008. The Veteran was not notified of said hearing or provided a transcript of the appellant's testimony. Nonetheless, the Board finds that the notice deficiencies with respect to the appellant's VA Form 9 and May 2008 hearing are not prejudicial to the Veteran in this case. In the decision below, the appellant's request for an apportionment of the Veteran's VA benefits is denied. Therefore, the decision below is favorable to the Veteran and the amount of his current VA benefits remains intact. As the decision is in the Veteran's favor, there can be no prejudice in failing to strictly adhere to the special procedural requirements for simultaneously contested claims. In this case, all known and available records relevant to the issue on appeal have been obtained and associated with the claims file; neither party has contended otherwise. The Board concludes that neither party is prejudiced by a decision on the apportionment claim at this time. Legal Criteria for Apportionment In August 2006, the appellant filed an apportionment of the Veteran's VA benefits on behalf of M.B, who is the child of the appellant and the Veteran. According to the appellant, the Veteran was ordered to pay child support for M.B., but he has never paid. She essentially requests an apportionment to satisfy the Veteran's unpaid child support obligations. Under 38 U.S.C.A. § 5307, if a Veteran's child is not in his custody, all or any part of the compensation 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, the law provides that all or any part of the Veteran's compensation 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 and children's support. 38 U.S.C.A. § 5307; 38 C.F.R. §§ 3.450, 3.452. 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. 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. A Veteran's benefits will not be apportioned where the total benefit payable to the disabled person does not permit payment of a reasonable amount to any apportionee. 38 C.F.R. § 3.458(a). Pursuant to 38 C.F.R. § 3.57, except as provided in paragraphs (a)(2) and (3) of this section, the term "child of the Veteran" means an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the Veteran's household or was a member of the Veteran's household at the time of the Veteran's death, or an illegitimate child; and (i) Who is under the age of 18 years; or (ii) Who, before reaching the age of 18 years, became permanently incapable of self-support; or (iii) 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 educational institution approved by the Department of Veterans Affairs. See also 38 U.S.C.A. 101(4)(A), 104(a)) Factual Background and Analysis The appellant is the mother of M.B., who was born on July [redacted], 1988. Of record is a March 1998 default judgment from a state Court, which shows that the Veteran was declared to be the father of M.B. The document shows that the Veteran was ordered to pay child support. The claims file reflects that the appellant initially filed a claim for apportionment in October 2004. At the time of that the appellant filed her initial claim, M.B. was under the age of 18 and attending high school. The appellant's claim was denied by way of an April 2005 administrative decision, as the RO determined that a need was not shown. She did not appeal this decision and thus the decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.1103 In August 2006, the appellant filed the present claim for an apportionment on behalf of M.B. She indicated that M.B. was in desperate need of financial assistance because he was enrolled a state university. The appellant later clarified the nature of her claim in her January 2007 Notice of Disagreement and during the May 2008 RO hearing. She essentially testified that she wished to obtain an apportionment from the time she first filed a claim in October 2004 until the time that M.B. reached the age of 18. The appellant stated that M.B. was 17 at the time that she first filed a claim, and that he was still in high school; she indicated that she wanted to receive financial help for this time period, as the Veteran had not paid any child support for M.B. Thus, the appellant asserted that her original claim for an apportionment should have been granted. She further testified that M.B. was enrolled in school and that he was in receipt of VA educational benefits. In this regard, the claims file reflects that M.B. was awarded VA education benefits beginning in August 2007. After reviewing the pertinent evidence, the Board finds that the requirements for an apportionment of the Veteran's VA compensation benefits have not been met. Initially, the Board notes that appellant seeks an apportionment in an attempt to collect monies past due that the Veteran was required to pay for child support. However, the remedy for receiving those monies is not through an apportionment; it is through the state courts. Yet, the Board must consider whether an apportionment is warranted on behalf of M.B. In this case, the appellant asserts that an April 2005 decision that originally denied her claim for an apportionment was in error. However, as discussed above, the appellant did not appeal the April 2005 decision. Since the appellant did not timely appeal the April 2005 decision, it became final and binding on her based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.1103. VA regulations provide that previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3,195(a). The appellant has not claimed that there is CUE in the April 2005 decision and the Board has no power to revise that decision under these circumstances. Thus, her current August 2006 claim for an apportionment must be analyzed exclusive and independent from any prior claims or decisions for benefits. Moreover, the Board notes that at the time that the appellant filed a claim in August 2006, M.B. was over the age of 18. Although the appellant claimed that M.B. was enrolled in school at that time, she failed to provide any evidence to verify this fact. Indeed, there is no evidence indicating that M.B. was enrolled in any form of higher education until August 2007, at which time he filed for and received VA education benefits. Essentially, the appellant failed to provide evidence that M.B. was a "child" as defined by 38 C.F.R. § 3.57 at the time she filed her claim. Accordingly, the based on the evidence of record, it cannot be said that the Veteran is not reasonably discharging his responsibility for his child support and therefore, the requirements for an apportionment under 38 C.F.R. § 3.450 have not been met. Again, the Board highlights that M.B. was over the age of 18 at the time the appellant filed her claim for an apportionment, and thus able to file for an apportionment on his own behalf. While VA regulations to do not explicitly prohibit the appellant from filing an apportionment claim on M.B.'s behalf, any payments that may have been awarded in this regard would be paid directly to M.B. himself. See 38 C.F.R. § 3.854 (generally directing that payments of VA benefits should be paid directly to the child after the child attains its majority under to law of the State in which the child resides); 38 C.F.R. § 4.03(a)(4) (directing that payments should be provided to a child over the age of majority who is still in school even if the child may still be in the custody of the spouse); see also 38 C.F.R. § 3.667(a)(3); VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iii, 6.B.8.k. Thus, the appellant is not entitled to an apportionment paid directly to her for any period during which M.B. was over the age of 18 and was enrolled in school. Thus, her claim fails in this regard. As the law in this case is dispositive, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). For the foregoing reasons, the Board concludes that the criteria for an apportionment of the Veteran's VA compensation benefits to the appellant are not met. 38 C.F.R. §§ 3.450, 3.451. 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 parties. Elias v. Brown, 10 Vet. App. 259, 263 (1997). Accordingly, the appeal is denied. ORDER Entitlement to an apportionment of the Veteran's disability compensation on behalf of his child, M.B., is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs