Citation Nr: 1301598 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 04-40 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an apportionment of the Veteran's compensation benefits on behalf of his minor child, M.W., in an amount in excess of $124.00 per month. REPRESENTATION Appellant represented by: Unrepresented Veteran represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and Veteran ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to January 1972. The appellant is the Veteran's ex-spouse and has filed a claim for increased apportionment of the Veteran's disability compensation benefits on behalf of their minor child, M.W. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 special apportionment decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2006, March 2009, and October 2010, the Board remanded this case for additional development. The Appellant presented testimony before a Veterans Law Judge (VLJ) at the RO in October 2005, and the Veteran testified before an Acting VLJ at the RO in November 2008. Transcripts of both hearings have been associated with the claims file. By law, appeals can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C.A. § 7102(a) (West 2002). Thus, when an appellant has had a hearing before two separate VLJs during an appeal, and these hearings covered one or more common issues, a third VLJ is assigned to the panel after the second Board hearing has been held and the appeal is ready for appellate review. See 38 C.F.R. § 20.707 (2012). In Arneson v. Shinseki, 24 Vet. App. 379 (2011), the Court interpreted 38 C.F.R. § 20.707 as requiring that the appellant be provided the opportunity for a hearing before all three VLJs involved in a panel decision. A panel decision is in order in the present case. Hence, in an August 2012 letter, the Veteran and the appellant were offered an opportunity of a hearing before a third VLJ. The Veteran responded that he did not desire another hearing; the appellant did not respond to the letter. Under these circumstances, the Board finds that there is no hearing request pending at this time, and the Board has complied with the requirements set forth in Arneson. See 38 C.F.R. § 20.700(a). As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with this appeal. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran and the appellant have one minor child, M.W., who lives with the appellant. 2. In March 2002, the RO awarded an apportionment of the Veteran's VA compensation benefits to the appellant on behalf of M.W., in the amount of $124.00 per month, which she continues to receive. 3. A financial hardship for the purpose of an increased special apportionment is not shown. CONCLUSION OF LAW The criteria for an increased special apportionment of the Veteran's VA compensation benefits have not been met. 38 U.S.C.A. § 5307 (West 2002); 38 C.F.R. §§ 3.450, 3.451, 3.452, 3.453, 3.458 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). This appeal, however, 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). In other words, the 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 (2012). Here, review of the claims file reveals that the applicable contested claims procedures have been followed. Specifically, the RO has provided both parties (the appellant and the Veteran) with appropriate notices and determinations related to the contested claim, and advised both parties of the applicable law and regulations. With regard to the development of the claim, 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. Additionally, pursuant to prior Board remands, the RO obtained current financial information from both the Veteran and the appellant, to include information regarding the Veteran's compliance with any child support order(s). See Stegall v. West, 11 Vet. App. 268 (1998). Finally, VA has afforded both parties the opportunity to give testimony before the Board. The Board therefore concludes that neither the appellant nor the Veteran is prejudiced by a decision on the claim at this time. II. Analysis By way of background, the record reflects that, by rating decision dated in December 1998, the RO granted the Veteran a 100 percent total and permanent disability evaluation, effective from June 23, 1998. In a decision dated in March 2002, the appellant was granted an apportionment of $213.00 per month on behalf of herself and M.W. The appellant's portion of the apportionment was discontinued following her divorce from the Veteran, effective May 1, 2002. However, she continued to receive an apportionment on behalf of M.W. in the amount of $124.00 per month. In March 2004, the appellant requested an increase in her monthly apportionment on behalf of M.W. on the grounds of financial need. During her October 2005 Board hearing, the appellant testified that the Veteran has been ordered to pay child support in the amount of $277.00 per month and that he is not fully discharging this duty. The appellant further testified that her monthly expenses routinely exceed her monthly income by approximately $300.00. As for the Veteran, he testified during his November 2008 Board hearing that he has made child support payments to the appellant since their divorce, but admitted to being delinquent on at least two occasions. He also testified that he has difficulty covering his monthly expenses and that he was forced to sell his truck because he could not afford it. 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. The first type is a "general" apportionment, which may be paid under the circumstances set forth in 38 C.F.R. § 3.450. More specifically, all or any part of the compensation payable on account of any veteran 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's or children's support. 38 U.S.C.A. § 5307(a)(2); 38 C.F.R. § 3.450(a)(1)(ii). 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 is a "special" apportionment. Under this type of apportionment, without regard to any other provision regarding apportionment, where hardship is shown to exist, compensation may be specially apportioned between the veteran and his 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 dependents and the apportionment claimants. The amount apportioned should generally be consistent with the total number of dependents involved. 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 his or her benefits would not provide a reasonable amount for any apportionee. 38 C.F.R. § 3.451. 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 these types of apportionments (either "general" or "special") 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. At the outset, the Board notes that, for purposes of 38 C.F.R. § 3.450, there is no evidence that the Veteran is not reasonably discharging his support for M.W. The Board acknowledges that the appellant submitted evidence, including an April 2002 child support order, an October 2005 order of modification, and an accounting from the Oklahoma Department of Human services, which indicates that the Veteran has not always paid the difference between his court-ordered child support and the $124.00 VA apportionment. In fact, the accounting document reflects that, as of February 2010, the Veteran was in arrears on child support for M.W. in an amount totaling $17,461.57. However, it is not within VA's jurisdiction to enforce any child support order or to apportion the Veteran's disability compensation such that the appellant receives the full amount of child support awarded by the state. As noted above, the Veteran has been providing monthly support to the appellant on behalf of M.W. in the amount of $124.00 a month, in the form of an apportionment of his VA benefits, for many years. Such apportionment is reasonable, in the Board's opinion, as it comports with the VA Compensation Rate Table for December 1, 2009, forward, as relates to the rate payable for a minor 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, or $49.00 less than the amount currently apportioned to M.W. 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 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 rate of "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. As discussed hereinafter, such deprivations are not shown in this case. Following receipt of the appellant's March 2004 claim for increased apportionment, the RO requested information regarding both parties' monthly income and expenses. In correspondence received in April 2004, the appellant listed herself as receiving $2,514.69 per month in (gross) income from two jobs, plus $124.00 from the aforementioned apportionment. She also stated that she had the following monthly expenses: mortgage payment of $676.28; utility bills of $123.86; telephone bill of $71.00; food of $100; life insurance premium of $5.50; medical insurance premium of $60.00; and personal expenses of $50.00. Given these facts, the appellant's monthly income exceeds her expenses by approximately $1,552.05. In October 2005, the appellant testified that she no longer held two jobs and that her only source of income (other than the $124.00 apportionment) was earnings from her job at UPS. She indicated that her net (or take-home) pay was equal to $465.00 per week (or $1,860.00 per month). Thereafter, in May 2007, the appellant submitted evidence of additional expenses for M.W., including $140.00 per month in after-school childcare and $176.00 per month in medical expenses for orthodontia. The appellant also provided evidence regarding expenses incurred for M.W.'s extra-curricular activities, including bowling and karate lessons. However, as these do not represent "essentials," the Board will not include them in any determination regarding the appellant's financial hardship. If the additional expenses provided by the appellant in May 2007 are added to the expenses noted in April 2004, the appellant's monthly income (as reported in October 2005) still exceeds her expenses by $581.36. In September 2009, the appellant submitted a VA Form 5655, Financial Status Report, in which she indicated a total monthly net income of $3,885.34. She also reported the following average monthly expenses: rent or mortgage payment of $550.00; food bill of $250.00; utilities and heat bill of $360.00; school loan of $700.00; car insurance payment of $125.00; life insurance premium of $60.00; internet bill of $74.00; clothes, personal, and hair expenses of $800.00; automobile gas of $200.00; home gas of $200.00; and other expenses of $200.00. Initially, the Board notes that some of these expenses, such as the school loan, do not pertain to the appellant's support for M.W. and, thus, do not represent an "essential" expense. Moreover, other expenses, such as clothes, personal, and hair expenses, seem unreasonably high (i.e., $800.00 per month) as reported by the appellant. Nevertheless, assuming arguendo that all of these expenses should be considered by the Board in its analysis, the appellant's monthly income still exceeds her monthly expenses by $366.34. The Board is sympathetic to the appellant's claim. Moreover, it has considered her personal testimony that she experiences difficulty making ends meet each month. However, as discussed above, the appellant has, by her own admission, sufficient income to cover her and M.W.'s essential living expenses. In this regard, the Board notes that it has relied solely on the information provided by the appellant in evaluating her financial need and that no accounting of this evidence reveals that her income is insufficient such that an increased special apportionment is warranted. As this specific financial information is more probative than the appellant's generic statements regarding financial need, the Board finds that hardship is not demonstrated. As a final matter, the Board acknowledges that under VA's own guidelines, an apportionment of less than 20 percent of the Veteran's benefits generally would not provide a reasonable amount for any apportionee, and that undue hardship is ordinarily not recognized until more than 50 percent is apportioned. In this case, the $124.00 amount monthly apportioned is well below the 20 percent level of the Veteran's compensation benefits (which total more than $2,000 per month). However, the circumstances of this case indicate that the appellant's income consistently exceeds her essential expenses. In fact, despite her lay assertions, the financial information presented throughout this appeal fails to reflect that the appellant's expenses were ever in excess of her income. As such, hardship on the part of the appellant is not shown and 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 and 3.451 are not shown to have been met, 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 Entitlement to an apportionment of the Veteran's compensation benefits on behalf of his minor child, M.W., in an amount in excess of $124.00 per month, is denied. ____________________________ ___________________________ STEVEN D. REISS SONNET GORHAM Veterans Law Judge, Acting Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals ____________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs