Citation Nr: 1300303 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 10-34 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Eligibility for apportionment of the Veteran's disability compensation benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from July 1968 to February 1972, to include a tour of duty in Vietnam. He additionally served on active duty with the United States Navy from August 1972 to June 1974. The appellant is the former spouse of the Veteran; they married in September 1975, and were divorced in October 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 administrative determination by the Huntington, WV, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied eligibility for apportionment. The appellant testified at an April 2012 hearing held before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. FINDING OF FACT The appellant and the Veteran were divorced effective October 31, 2001 and have not since been remarried to each other. CONCLUSION OF LAW The criteria for eligibility for apportionment of the Veteran's disability compensation benefits are not met. 38 U.S.C.A. § 5307 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.50, 3.450, 3.452 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Here, however, the notification and assistance provisions are not applicable, as the claim cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). The facts are undisputed. The Veteran and appellant were married in September 1975. During the course of the marriage, the Veteran suffered from a psychiatric disorder, and was emotionally and physically abusive to the appellant. Despite this, the appellant remained a staunch advocate for the Veteran, and assisted him in securing service connection for posttraumatic stress disorder (PTSD), rated 50 percent disabling, and entitlement to a finding of total disability based on individual unemployability (TDIU). Soon after the grant of total disability, the appellant sued for and was granted a divorce from the Veteran. A final decree was entered on October 31, 2001. They remain divorced; the Veteran has remarried twice since. Apportionment is a mechanism by which a portion of a Veteran's benefits, either pension or compensation, may be paid directly to his or her dependents. Key to basic eligibility for apportionment is a dependent relationship. VA recognizes a spouse, a surviving spouse, children, or parents as dependents eligible for apportionment. 38 C.F.R. §§ 3.450, 3.452. Upon a divorce from a Veteran, the ex-spouse loses her status as a veteran's spouse, including any potential entitlement to an apportionment of his VA disability compensation, effective from the date of their divorce. See 38 U.S.C.A. § 101(31); 38 C.F.R. §§ 3.1(j), 3.50. A divorce severs the dependent relationship. The appellant argues that she supported the Veteran for 26 years and was as affected by his illness as he was. Accordingly, she deserves some recompense as a matter of equity. The Board is sympathetic to this position, and notes that the divorce decree appears to support her. Alimony payments of $500.00 per month were tied to the Veteran's receipt of VA benefits. However, the Board is without authority to grant equitable relief; the Board is constrained to follow the specific provisions of law that govern the circumstances of this case and that are within the jurisdiction and authority of the Board to review. See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 390, 425 (1994). By law she is not eligible for the remedy she seeks; apportionment is not due ex-wives. Only current spouses may benefit from apportionment. The appellant further argues that the divorce was forced upon her by the Veteran's behavior, and was a necessity not due to any fault on her part. Regulations do contain some provisions permitting expansion of the defined marital relationship for VA purposes, but these provisions apply to claims for death benefits and entitlement as a surviving spouse. 38 C.F.R. §§ 3.50(b)(1), 3.53. They do not apply to apportionment, and do not change the requirement that a claimant be considered a spouse. Finally, the appellant argues that she is entitled to apportionment of some part of the Veteran's compensation benefit based upon the provisions of the divorce decree, as that document directed payment of alimony out of VA benefits and ordered equal division of any lump sum retroactive payment of VA benefits following a grant of entitlement. She relies upon 10 U.S.C.A. § 1408 to support her position. This statute deals with garnishment of military retired pay to satisfy valid court orders. It does not address VA disability benefits, and is inapplicable. The appellant recognized this to some extent when discussing how her research had shown that many Veterans had used the ability to switch from retirement benefits to disability benefits to escape financial obligations to former spouses. Transcript, p. 19. Moreover, the appellant reported on her August 2010 substantive appeal that she released the Veteran from his alimony obligation in 2003. Even if the Board were empowered to enforce the divorce decree, the provision the appellant seeks enforcement of is no longer in effect. Apportionment is possible only to provide support for the dependents of a Veteran. The October 2001 divorce severed the dependent relationship between the Veteran and the appellant, and she is accordingly not eligible for apportionment. While the Board is sympathetic to her financial straits and appreciative of her efforts to assist the Veteran during their marriage, there can be no remedy in this forum. ORDER Eligibility for apportionment of the Veteran's disability compensation benefits is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs