Citation Nr: 1302233 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 08-10 020A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether apportionment of Department of Veterans Affairs compensation benefits in the amount of $100 for the Veteran's spouse was proper. REPRESENTATION Claimant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to July 1968 and from August 1969 to August 1972. The claimant is the Veteran's spouse, M.M. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a May 2006 administrative decision of the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO), which granted apportionment of Department of Veterans Affairs compensation benefits for the claimant, the estranged spouse of the Veteran, in the amount of $100 per month. The Veteran appealed this decision. The Veteran has since moved to Illinois and jurisdiction of this claim has been transferred to the Chicago, Illinois, RO. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in September 2012. A transcript of the hearing is associated with the claims file. During the hearing, he submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with this claim. 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. The issue of entitlement to an increased apportionment of the Veteran's VA compensation benefits has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran is in receipt of VA compensation benefits. 2. The claimant, M.M., is the Veteran's spouse. 3. An apportionment of the Veteran's VA compensation benefits could be made to the claimant without causing undue hardship to the Veteran. CONCLUSION OF LAW Apportionment of the Veteran's VA compensation benefits in the amount of $100 monthly for the support of the claimant, his spouse, was proper. 38 U.S.C.A. §§ 5103, 5103A, 5307 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.450, 3.451, 3.452, 3.458 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159, 3.326(a). VCAA, however, does not apply to decisions regarding the manner in which benefits are paid. Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). An apportionment decision involves deciding how existing benefits are to be paid; thus, under Sims, the VCAA is not applicable to this claim and no further discussion of the duty to assist is necessary. VA rules include special procedural requirements for simultaneously contested claims, such as a claim for apportionment. See 38 C.F.R. §§ 19.100, 19.101, 19.102. In this case, the applicable contested claims procedures were followed. In letters dated May 2006, the RO ensured that appropriate notification was dispatched to each of the parties to the contested claim. The RO provided both parties (the Veteran and the claimant) with notices and determinations related to the contested claim, including a statement of the case (SOC), and advised both parties of the applicable law and regulations. Analysis In an August 2005 claim, the appellant sought apportionment of the Veteran's disability compensation. In a May 2006 administrative decision, the claimant was awarded apportionment in the amount of $100 per month. The Veteran has appealed that award. Compensation benefits payable to a veteran may be apportioned if a veteran is not residing with his spouse and the Veteran is not reasonably discharging his responsibility for the spouse's support. 38 U.S.C.A. § 5307; 38 C.F.R. §§ 3.450, 3.452. It is not necessary for an apportionment claimant to establish the existence of hardship in order to obtain an apportionment under this provision. See Hall v. Brown, 5 Vet. App. 294 (1993). 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. 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. Under 38 C.F.R. § 3.451, 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. Ordinarily, apportionment of more than 50 percent of a 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. Certain circumstances can bar apportionment. Specifically, a veteran's benefits will not be apportioned where (1) the total benefit payable to the disabled person does not permit payment of a reasonable amount to any apportionee; (2) the Veteran's spouse has been found guilty of conjugal infidelity by a court having proper jurisdiction; (3) it has been determined that the Veteran's spouse that has lived with another person and held herself or himself out openly to the public to be the spouse of such other person; (4) the Veteran's child has been legally adopted by another person; (5) the Veteran's child enters the active military, air, or naval service; (6) forfeiture was declared prior to September 2, 1959, if the dependent is determined by the Department of Veterans Affairs to have been guilty of mutiny, treason, sabotage, or rendering assistance to an enemy of the United States or its allies; (7) where forfeiture of benefits by a person primarily entitled was declared after September 1, 1959, by reason of fraud, treasonable acts, or subversive activities; and (8) the Veteran's estranged spouse has not filed a claim for an apportioned share. See 38 C.F.R. § 3.458(a-g). The term "spouse" means a person of the opposite sex who is a wife or husband. 38 U.S.C.A. § 101(31). "Wife" means a person whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1(j) and 38 C.F.R. § 3.50(a). "Marriage" means a marriage valid under the law of the place where the parties resided at the time of marriage or the law of the place where the parties resided when the rights to benefits accrued. See id. Considering the claim in light of the above-noted legal authority, the Board finds that the criteria for apportionment are met. In this case, the record establishes that the claimant is the Veteran's wife. There is no evidence of a divorce decree. See January 2008 Report of Contact with the Multnomah County Circuit Court. Indeed, the lay evidence of record specifically stated that the Veteran has not and was not seeking a divorce from the claimant. See September 2012 hearing testimony; May 2006 letter of the Veteran's caretaker, P.S.H. With regard to the question of whether the Veteran is reasonably discharging his responsibility for the spouse's support, the record does not indicate, nor does the Veteran suggest, that he is providing any financial support to his estranged spouse. Instead, the Veteran has provided lay testimony and statements that the claimant took a substantial portion of his finances when she left. See September 2012 hearing testimony; May 2006 letter of P.S.H. Indeed, in her May 2006 letter, the Veteran's caretaker, P.S.H., stated that the state of Oregon had a warrant out for the arrest of the claimant and her current female lover for theft and abuse. VA contacted the Multnomah County Sheriff's Department and determined that there was no such warrant for the claimant's arrest. This contact did, however, confirm that the Veteran has taken out a restraining order on the claimant in March 2005. The February 2005 judgment against the Veteran indicates that the claimant had a restraining order against the Veteran at that time. Next, the Board will consider whether the evidence demonstrates any bar to apportionment under 38 C.F.R. § 3.458. In this regard, P.S.H.'s May 2006 letter alleges that since moving to Ohio, the claimant had "married her female lover and moved into their dream home." The Veteran made similar allegations at his September 2012 hearing. Thus, the Veteran has argued that no apportionment should be made based on the claimant's conjugal infidelity or because she has lived with another person and held herself out openly to the public to be the spouse of such person. See 38 C.F.R. § 3.458(b-c). The Veteran has not produced any objective evidence supporting his allegations. There is no court finding of conjugal infidelity on the part of the claimant. The claimant now resides in Ohio. The Board takes judicial notice that same-sex marriage is not recognized by the State of Ohio. Moreover, beyond the lay statement of the Veteran and his caretaker regarding what they had been told by anonymous sources, the record contains no evidence that his estranged spouse (the claimant) either lives with another person or has held herself out openly to the public to be the spouse of such person. As such, the record does not establish any bars to apportionment under 38 C.F.R. § 3.458. Finally, the Board will consider whether this apportionment causes undue hardship on the Veteran. At the time of the May 2006 administrative decision, the Veteran was receiving 70 percent disability compensation. The Veteran's caregiver, P.S.H. listed the Veteran's total expenditures as $1083 per month out of the $1099 he received in compensation benefits. The currently assigned apportionment of $100 was below 10 percent of the Veteran's benefits at the time of the award. However, since that time, the Veteran's disability benefits have been increased to 80 percent, retroactively effective July 9, 2004, and then to 100 percent, effective June 23, 2005. In this regard, the Veteran has effectively been in receipt of a 100 percent disability benefit payment for the entirety of the appeals period. Currently, the Veteran's gross compensation award is over $3000, rendering the apportionment of $100 per month approximately 3 percent. An updated summary of the Veteran's expenses received in September 2012 reflects monthly expenses of $2870. Even considering the large increase in expenses, this still results in a surplus. The Board finds no evidence based on the record that the existing nominal apportionment of the Veteran's compensation benefits would cause undue hardship to the Veteran. In light of the foregoing, the Board concludes that the claimant is entitled to an apportionment of the Veteran's compensation benefits. 38 U.S.C.A. § 5307; 38 C.F.R. §§ 3.450, 3.451, 3.452, 3.458. As such, the Veteran's appeal is unsuccessful. ORDER The apportionment of the Veteran's service-connected disability compensation benefits in the amount of $100.00 monthly in support of the claimant is proper; the appeal is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs