Citation Nr: 1133489 Decision Date: 09/09/11 Archive Date: 09/15/11 DOCKET NO. 06-35 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased apportionment of the Veteran's VA compensation benefits on behalf of his helpless child. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, his mother, and a caregiver ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had active service from August 1965 until June 1969. The appellant in this case is the Veteran's son, who has helpless child status. This case comes before the Board of Veterans' Appeals (Board) on appeal from a April 2006 apportionment decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In the decision, the RO denied the appellant's claim for an apportioned share of the Veteran's VA benefits, in excess of $ 79.00 a month. In October 2009, the appellant, his mother, and another witness presented testimony at a travel Board hearing held before the undersigned Veterans Law Judge in October 2009. The Veteran had also requested a travel Board hearing in 2006 and was generally informed of the Board hearing scheduled for October 2009; however, it was not clear whether he was actually ever invited as participant to this hearing or given information regarding the specific time or location of the hearing. In December 2009, the Board remanded the claim for additional development and adjudicative action. There has been substantial compliance with those remand instructions and the case is ready for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). Subsequently, the Veteran requested a Board videoconference hearing in July 2010, which has not yet been scheduled. However, in light of the disposition of this case in the Veteran's favor, the Board concludes that the failure to schedule the requested hearing is non-prejudicial. As this is a contested claim, this Board decision must be issued to both the appellant and the Veteran. FINDINGS OF FACT 1. The appellant is the adult son of the Veteran who has been found by VA to be permanently incapable of self-support. 2. In March 2004, the Veteran was awarded a 100% permanent and total evaluation, effective from July 1993. 3. Apportionment of the Veteran's VA benefits in the amount of $79.00 a month in support of the appellant, is reasonable; comports with the VA Compensation Rate Table for December 1, 2009 forward as relates to the rate payable for a helpless child for a Veteran in receipt of VA benefits at the 70 to 100 percent level; and does not create undue hardship on the Veteran. 4. Since 1999, the Veteran has been reasonably discharging his responsibility for support of the appellant, by virtue of the apportionment of his VA benefits. 5. The appellant's total monthly income from Social Security benefits and a VA apportionment is sufficient to cover his reported monthly expenses, with some residual amount of income. [Continued on Next Page] CONCLUSION OF LAW The criteria for an increased apportionment of the Veteran's VA monthly disability compensation benefits on behalf of his son, the appellant, in excess of the currently effective monthly amount of $79.00, have not been met. 38 U.S.C.A. § 5307 (West 2002); 38 C.F.R. §§ 3.356, 3.450, 3.451, 3.452, 3.453, 3.458 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. This appeal concerns a benefit provided 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 and 38 C.F.R. § 3.159 do not apply to claims for benefits provided under chapters other than chapter 51. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). That is, the Veterans Claims Assistance Act of 2000 (VCAA) does not apply to decisions regarding how benefits are paid. VA rules do, however, 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 (2010). 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. The applicable contested claims procedures were not, however, initially followed in this case. Pursuant to a Board remand issued in December 2009, the RO did take remedial action and ensured that appropriate notification was dispatched to each of the parties to the contested claim. It appears that the RO has provided both parties (the appellant and the Veteran) with remedial notices and determinations related to the contested claim, and advised both parties of the applicable law and regulations. The claim was subsequently adjudicated in a supplemental statement of the case issued in August 2010, and thus any presumed prejudice associated with the delayed timing is rebutted. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In addition, all assistance feasible on the part of VA in obtaining relevant evidence pertinent to the parties involved in this case has been provided. In 2010, the RO obtained current financial information from both the Veteran and the appellant. All known and available records relevant to the issue on appeal have been obtained and associated with the claims file; and neither party has contended otherwise. The Board therefore concludes that neither the appellant nor the Veteran is prejudiced by a decision on the claim at this time. Background In this matter, the record shows that the Veteran married V. Z. in April 1978, and in June 1989, they were divorced. The couple had a son, the appellant, who was born in September 1978. The Veteran's ex-wife initially filed a claim for apportionment of the Veteran's VA benefits, to assist with the raising of his son in December 1993. That claim was denied in a December 1993 decision. In February 1999, the Veteran's ex-wife filed a second claim for apportionment of the Veteran's VA benefits, on behalf of her son, the appellant. At that time, the Veteran was in receipt of a 70 percent evaluation for PTSD, effective from January 1993. In a decision issued in September 1999, the claim for an apportioned share of the Veteran's VA benefits, brought by his ex-wife, was denied. The evidence on file also reflects that in 1999 there was a pending claim for declaration of the appellant as a helpless child; that claim was denied in an October 1999 decision and appealed. In March 2004, the appellant's ex-wife filed another claim for apportionment of the Veteran's VA benefits, also again requesting that her son receive consideration of helpless child status. The record also reflects that in a decision issued in March 2004, the Veteran was awarded a 100% permanent and total evaluation, effective from July 1993. In an October 2004 rating action, permanent incapacity for self-support (helpless child status) was established for the appellant, effective from February 1999. In addition, in correspondence from VA to the Veteran dated in November 2004, he was advised that apportionment of his VA benefits in monthly amounts ranging from $79.00 to $86.00 (adjusted for yearly legislative increases) had been approved for a period beginning on March 1, 1999. However, in correspondence issued by VA to the Veteran's ex-wife in November 2004, she was advised that as the appellant was over the age of 18 and not deemed incompetent, he would be the proper claimant and would need to fill out administrative paperwork in order to establish his entitlement to benefits. The file contains a special apportionment decision dated in April 2005, reflecting that the appellant (the Veteran's son) was now the claimant. The decision included no financial information regarding the appellant's resources or expenses. The only information provided pertaining to the Veteran's resources and expenses, reflected that he was in receipt of VA benefits in the amount of $2,239.00, monthly. Apportionment of the Veteran's VA benefits to the appellant in the monthly amount of $79.00, was approved, effective from March 1999. It was explained that the Veteran's current benefits of 70% compensation with TDIU, were sufficient to allow a reasonable amount of support for a helpless child, as required under 38 C.F.R. § 3.458. The Veteran and appellant were advised of this decision by VA in April 2005. In June 2005, the appellant filed a claim for an increased apportionment share of the Veteran's VA benefits. He explained that he was 26 years old and suffered from ADD, a neurological disorder, depression, and anxiety attacks. He mentioned that he was receiving treatment at a community clinic, but had to pay for services and medication. He mentioned that he also sought additional assistance to pay for a job coach and to pay rent so he could live with his brother. The appellant provided financial information in October 2005, at which time expenses of $79.00 a month were shown, enumerated as rent ($20.00); telephone ($51.00); and personal ($8.00). The file contains correspondence from the Veteran received in November 2005, indicating that the appellant was an able adult male, who was working in the state of Georgia and had a son of his own. A picture of a young man and child (presumably the appellant and his son), accompanied the statement. The file contains a special apportionment decision dated in April 2006. The decision reflected that the appellant's resources included an apportioned award of VA benefits in the amount of $79.00 a month, as well as additional monthly income of $645.00, totaling resources of $724.00; the appellant's expenses were not provided. Information pertaining to the Veteran's resources and expenses, reflected that he was in receipt of VA benefits in the amount of $2,308.00, monthly. An increased apportionment share of the Veteran's VA benefits for the appellant was denied. It was explained that the appellant had requested an increased apportionment share to be financially independent. It was noted that his expenses did not exceed his income and that he was in receipt of $79.00 a month of the Veteran's VA benefits. It was concluded that because increased apportionment would only be any additional amount payable for a child and would not provide financial independence, and since there was some question involving the validity of the claim, an increase was not warranted. The Veteran and appellant were advised of this decision by VA in April 2006. In August 2006, a statement was received from the appellant's mother indicating that she was on a fixed income and had a life-threatening illness and was not able to adequately care for her son and pay for his expenses. She mentioned that her son was unable to maintain employment and needed an increased share of apportionment of the Veteran's VA benefits, further commenting that this would not cause hardship for the Veteran. On the appellant's substantive appeal form received in November 2006, his mother explained that during the past 2 1/2 years, the Veteran had only worked for 5 months, and had 2 jobs. She mentioned that he had enrolled in numerous employment assistance programs and that he was unable to maintain steady employment. It was also noted that the appellant's expenses exceeded his income, as he had only $79.00 a month to pay for food, clothing, medication, hygiene and toiletries. The file contains a medical statement of Dr. D. dated in March 2007. Upon evaluating the appellant it was noted that his presenting diagnoses were ADHD and anxiety disorder, with a history of seizures. The doctor commented that the appellant's conditions caused him considerable difficulty with organization and interpersonal relationships. He opined that because of these difficulties the appellant was incapable of working in a competitive job situation. Evidence from the Social Security Administration (SSA) reflects that the appellant was found to be disabled effective from September 2006, with monthly compensation benefits becoming effective in March 2007. The appellant, his mother and another witness ( a caretaker), presented testimony at a travel Board hearing held in October 2009. The appellant indicated that in addition to the $79.00 apportioned share of the Veteran's benefits which he received, he was also in receipt of SSA benefits in the amount of approximately $647.00 a month. The appellant indicated that he had a 9-year old son, who did not live with him, but for whom he provided some financial assistance. He further stated that he was trying to be independent and had his own place which was subsidized housing, costing approximately $85.00 a month in rent. The appellant and his mother testified to the effect that the appellant had utility bills and car insurance to pay, and that his mother assisted, but the Veteran did not (except for the apportionment received). In correspondence issued by VA to the Veteran dated in July 2010, he was requested to provide financial information including his monthly income and expenses. He was advised that $150.00 a month would be withheld from his monthly check beginning November 2010, while the apportionment claim was pending, in order to reduce any possible overpayment which might occur should the claim for increased apportionment be granted. In July 2010, the appellant and his mother provided financial information to VA reflecting total monthly income in the amount of $647.00 (SSA). Total monthly expenses in the amount of $572.00 were also listed ($100.00 - rent; $50.00 - phone bill; $55.00 - car insurance; $80.00 child support payment; and $287.00 car note - for a car in his mother's name). In July 2010, the Veteran also provided financial information to VA reflecting total monthly income in the amount of $1,201.00 (SSA) with no other listed income and no report of the amount of his monthly VA benefits. Total monthly expenses came to $3152.00. The file contains a special apportionment decision dated in August 2010. The decision reflected that the appellant's resources consisted of monthly income of $647.00 (SSA benefits) and monthly expenses of $492.00, with a net income following expenses of $155.00. (The Board notes that the decision failed to account for the appellant's additional income of $79.00 a month - VA apportionment, bringing his actual monthly resources to $726.00 a month; or for the full amount of his listed expenses of 572.00, per the July 2010 financial report. With consideration of these figures, the appellant's net income following expenses was $154.00). The decision further reflected that the Veteran's resources consisted of monthly income totaling $3,921.50, consisting of $1,297.50 (SSA benefits) and $2,624.00 (VA benefits). His monthly expenses were listed as $2,527.00, with a net income following expenses of $1132.50. (The Board notes that the decision failed to account for the appellant's reported total expenses of $3,152, as listed on his July 2010 financial report, bringing his net income following expenses to $769.00). In the August 2010 decision, entitlement to an increased amount of apportionment was denied. It was explained that the appellant's expenses did not exceed his income. In addition, the decision mentioned that the amount payable for a helpless child based on the Compensation Rate table for December 1, 2009 (through 2011) was $75.00 a month; it was further noted that the appellant was in receipt of benefits in the amount of $79.00 a month. It was concluded that the Veteran demonstrated that he was meeting his financial obligations to the appellant. Analysis The appellant, in this case is the Veteran's adult son, who has been recognized by VA as a "helpless child" as defined under the provisions of 38 C.F.R. § 3.356 (2010). The appellant is currently in receipt of an apportionment of the Veteran's VA benefits in the amount of $79.00 a month and is seeking an increased apportionment share of the Veteran's benefits. In March 2004, the Veteran was awarded a 100% permanent and total evaluation, effective from July 1993. The term "child" includes an unmarried person, who before reaching the age of 18 years, became "helpless", i.e. permanently incapable of self-support. 38 U.S.C.A. § 101(4) (West 2002); 38 C.F.R. § 3.57 (2010). Pursuant to 38 C.F.R. § 3.356(a) (2010), a child must be shown to be permanently incapable of self- support by reason of mental or physical defect at the date of attaining the age of 18 years. 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). 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. 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. Moreover, 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 special apportionment was 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 special circumstances exist which warrant giving "dependents" additional support. See, e.g., Vet. Reg. No. 6(c), Instruction No. 2, VI (Oct. 1934); cf. Vet. Reg. No. 6(c), 4 (June 1934). Both of types of apportionments (either "general" or "special" apportionment) are payable to a spouse or dependent. 38 U.S.C.A. § 5307(a)(2) (West 2002); 38 C.F.R. §§ 3.450(a)(1)(ii), 3.451. 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). The Veteran has been providing monthly support to the appellant in the amount of $79.00 a month, in the form of an apportionment of his VA benefits, for many years. Since this case involves a claim to an increased apportioned share of the Veteran's VA benefits, and the underlying apportionment has already been established, 38 C.F.R. § 3.453 applies because it governs such determinations of the rate of apportionment. Under 38 C.F.R. §§ 3.453 and 3.451, the hardship of the parties is to be considered for the purpose of determining the rate or amount of apportionment. As an initial matter, the Board notes that apportionment of the Veteran's VA benefits in the amount of $79.00 a month in support of the appellant, is reasonable and comports with the VA Compensation Rate Table for December 1, 2009, forward, as relates to the rate payable for a helpless child for a Veteran in receipt of VA benefits at the 70 to 100 percent level. The rate listed in that table in such circumstances is $75.00 a month. The records reflects that the appellant has been in receipt of an apportionment of the Veteran's VA benefits at a monthly rate of $79.00 since 1999. Thus, for the purposes of 38 C.F.R. § 3.450, there is no evidence to suggest that the Veteran has not been reasonably discharging his responsibility for the appellant's support so as to warrant an increase pursuant to a "general" apportionment. While § 3.450 requires a finding that a veteran is or is not reasonably discharging his duties to provide for his child, § 3.451 has no such requirement. Therefore, the Board must consider the issue of whether an increased amount "special" apportionment may be paid under the circumstances set forth in 38 C.F.R. § 3.451. For a special apportionment to be warranted, hardship (i.e. for the appellant) must be shown. Hardship contemplates an inability to pay for essentials such as food, clothing, shelter or medical expenses. Such deprivations are not shown in this case. The appellant has stated that he needs additional income to become more independent. Initially, the Board points out that this is somewhat contrary to the designation of the appellant as a "helpless child" who is permanently incapable of self-support. Upon review of all the evidence, to include lay, clinical, and financial information, the Board finds that an apportionment of $79.00 a month of the Veteran's VA compensation benefits in support of the appellant is reasonable. Significantly, the monthly award of approximately $647.00 in SSA benefits and the $79.00 apportionment of the Veteran's VA benefits is shown to be sufficient to cover all of the appellant's expenses, with approximately $155.00 of monthly net income after expenses. The Board notes that under VA's own guidelines, an apportionment of less than 20 percent of the Veteran's benefits would not provide a reasonable amount for any apportionee, and ordinarily undue hardship is not recognized until more than 50 percent is apportioned. In this case, the $79.00 amount monthly apportioned is well below the 20 percent level of the Veteran's compensation benefits. However, the circumstances of this case indicate that the appellant is a grown man, with a son of his own, an independent (or nearly so) living situation, and a car (in his mother's name). It appears that he is capable of paying his own bills and is taking steps to obtain and maintain employment. As mentioned previously, the appellant is able to cover his monthly financial obligations with some income residual. While it appears that the Veteran could provide more support without incurring hardship, in light of the appellant's situation, the need for additional financial support for the appellant is not established. In essence, there is no evidence of hardship on the part of the appellant. In fact, financial information presented between 2006 and 2010 fails to reflect that the appellant's expenses were ever in excess of his income. Thus, the criteria for assignment of an increased level of special apportionment under 38 U.S.C.A. § 3.451 are not met. In summary, the criteria for the assignment of an increased apportioned share of the Veteran's disability benefits under 38 C.F.R. §§ 3.340, 3.451 and § 3.453 are not met, for the reasons explained herein, and the claim must be denied. 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 an appellant and a Veteran. Elias v. Brown, 10 Vet. App. 259, 263 (1997). ORDER The claim for an increased level of apportionment of the Veteran's VA compensation benefits in excess of $79.00 monthly in support of the appellant, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs