Citation Nr: 1302779	
Decision Date: 01/25/13    Archive Date: 01/31/13

DOCKET NO.  09-33 350	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to apportionment of the Veteran's disability compensation payments for a minor child in the custody of the appellant.  


REPRESENTATION

Appellant represented by:	Unrepresented

Veteran represented by: 	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran 
ATTORNEY FOR THE BOARD

M. Tenner, Counsel


INTRODUCTION

The Veteran served on active duty from July 1973 to June 1975 and from March 1979 to April 1981.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 decision rendered by the Denver, Colorado Regional Office (RO) of the Department of Veterans Affairs (VA).  
 
In July 2008, the Veteran testified during a hearing held at the RO.  It does not appear that the appellant was notified of her right to present testimony at that hearing.  Typically, that would infringe upon the appellant's right to be heard in connection with her appeal.  The appellant, however, was afforded an opportunity to testify at a hearing before a Veterans Law Judge at the RO.  However, in September 2009, she withdrew her request.  Thus, because the appellant has been given an opportunity to testify but has withdrawn her request for a hearing, the Board finds that remanding this matter for an additional hearing is not required.  


FINDINGS OF FACT

1.  The appellant and the Veteran are not married and have one minor child who is currently in the custody of the appellant.  

2.  The Veteran is reasonably discharging his responsibility for support of the minor child.  

3.  The appellant is suffering from financial hardship.  

4.  An apportionment of $360.00 a month from the Veteran's VA disability compensation benefits would not result in undue hardship to the Veteran.  


CONCLUSION OF LAW

The criteria for a special apportionment of the Veteran's disability compensation benefits in the calculated amount of $360.00 a month have been met.  38 U.S.C.A. §§  1115, 5307 (West 2002); 38 C.F.R. §§ 3.450, 3.451, 3.452, 3.458 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Typically, the Board discusses whether VA has satisfied its duties to notify and assist an appellant in substantiating a claim for VA benefits.  This appeal, however, concerns a claim for benefits under 38 U.S.C.A. Chapter 53.  The rules governing VA notice and assistance upon receipt of a claim for benefits as outlined in 38 U.S.C.A. §§ 5103, 5103A (West 2002) and 38 C.F.R. § 3.159 (2012), do not apply to claims for benefits provided under chapters other than chapter 51.  Sims v. Nicholson, 19 Vet. App. 453 (2006).

Nevertheless, the Board observes that VA regulations impose special procedural requirements for simultaneously contested claims, including claims for apportionment.  38 C.F.R. §§ 19.100, 19.101, 19.102 (2012).  The applicable contested claims procedures were followed in this case.  The RO provided both parties with a March 2008 notice letter and a September 2008 decision related to the contested claim, and advised both parties of the applicable law and regulations.  

VA has also obtained financial information from the appellant and has afforded the appellant and the Veteran the opportunity to give testimony before the RO or the Board.  The Veteran did not provide financial information but did provide testimony during a hearing at the RO in July 2008.  The appellant requested a hearing before a Veterans Law Judge.  However, in September 2009, she withdrew her hearing request.  All known and available records relevant to the issue on appeal have been obtained and associated with the claims folder; and neither party has contended otherwise.  The Board therefore concludes that neither the appellant nor the Veteran is prejudiced by adjudication of the claim.

Legal Criteria

A Veteran's benefits may be apportioned if the Veteran is not residing with his spouse or child, and a claim for apportionment is filed for or on behalf of the spouse or child.  38 C.F.R. § 3.452(a) (2012).  

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.  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)(West 2002); 38 C.F.R. § 3.450(a)(1)(ii)(2012).  It is not necessary for the claimant to establish the existence of hardship in order to obtain an apportionment.  38 C.F.R. § 3.450 (2012); Hall v. Brown, 5 Vet. App. 294 (1993). 

The second type is a special apportionment.  For a special 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, while apportionment of less than 20 percent of his benefits would not provide a reasonable amount for any apportionee.  38 C.F.R. § 3.451 (2012).  

Both of types of apportionments, 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 (2012).  

The term child of the veteran includes an unmarried person who is under the age of 18 years; or, who, before reaching the age of 18 years, became permanently incapable of self-support; or, 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 approved educational institution.  38 C.F.R. § 3.57 (2012). 

The appellant seeks apportionment of the Veteran's disability compensation in order to provide for their minor child.  The minor child was born in February 1995.  Paternity is not contested.  The minor child is currently in the custody of the appellant.  

The appellant contends that the Veteran owes back child support and is not reasonably discharging his responsibilities to their minor child.  She has submitted various court and Social Security Administration (SSA) documents.  The court documents reveal that custody of the minor child has been awarded to the appellant.  A Social Security letter notes that the Veteran receives $389.00 a month and $207.00 a month is withheld to pay child support.  A January 2009 court document states that the Veteran's child support obligation is $0.00 because the minor child receives a derivative benefit, presumably, the SSA payment,.  In addition, she submitted a VA Form 21-0788 in which she set forth her current income and expenses.  According to her VA Form 21-0788, the appellant earns no income, other than $104.00 a month through Social Security.  She reported monthly expenses in excess of $1,000.00 a month.  She reported future medical expenses of $5,000.00 for orthodontic work for the minor child.  

With respect to the appellant's claim that the Veteran owes child support and that he is not paying current child support, the Board notes that the remedy for receiving those monies is not though an apportionment.  The appropriate remedy is to pursue a claim through the appropriate state court of jurisdiction.  Moreover, the court documents supplied reveal that he has no outstanding support obligation as the minor child receives a portion of his Social Security benefit.  That court specifically found that the Veteran is discharging his child support obligation by way of the Social Security offset.  While the Board is not bound by that finding, in the absence of evidence to the contrary, the Board similarly concludes that the Veteran is reasonably discharging his responsibility for his child's support because $207.00 per month is being withheld from SSA payments for child support.  

As a result, the Board finds no basis to award the appellant a general apportionment of the Veteran's benefits pursuant to 38 C.F.R. § 3.450 (2012). 

Turning to consideration of a special apportionment, the Board finds that the appellant has demonstrated financial hardship exists.  Undue hardship is defined as depriving a person of basic necessities.  38 C.F.R. § 1.965(a)(3) (2012).  Basic necessities constitute food, clothing, and shelter.  Here, she reports no income, other than a small amount from Social Security, and reports expenses that far exceed that Social Security income.  Moreover, because the Veteran has not submitted a VA Form 21-0788, there is insufficient evidence to find that the award of a special apportionment would cause him undue financial hardship.  The Board acknowledges that the Veteran is in receipt of a 100 percent disability rating for service-connected major depressive disorder and a 60 percent rating for degenerative joint disease of the lumbosacral spine.  The Board further acknowledges that the Veteran is unemployed, and, according to an application for a total disability rating, has not worked since 2003.  However, in the absence of evidence concerning his current income and expenses, the Board is unable to determine that awarding an apportionment of his compensation benefits would result in undue hardship.  

Considering the circumstances presented, the Board finds that an award of a special apportionment of his benefits would provide a reasonable amount for the minor child without causing undue hardship to the Veteran.  The provisions for special apportionment state the ordinarily, apportionment of less than 20 percent of his benefits would not provide a reasonable amount for any apportionee.  According to the most recent Compensation and Pension Award statement, he receives $2,925.00 a month, which includes $81.81 for the benefit of the minor child.  Without consideration of the benefit for the minor child, he receives $2,829.00 a month.  Twenty percent of that award equals $565.80 a month.  While less than 20 percent of the benefits is ordinarily an amount that does not provide a reasonable amount for an apportionee, the Board finds that the apportionment must be offset by the amount currently set aside by SSA to support the child.  The SSA benefit for the minor child is $207.00 a month.  Thus, after subtracting $207.00 from $565.80, there remains $358.80.  For ease of calculation and payment, the Board rounds this figure up to $360.00 per month.  The minor child would be receiving the equivalent of 20 percent apportionment of the Veteran's benefits, when that apportionment is added to the SSA payments.  The Board finds that amount constitutes a reasonable special apportionment for the benefit of the minor child.  While that amount would not permit her to meet her expenses, the appellant has not presented evidence as to why she earns no income.  The evidence does not show that an apportionment of $360 per month would result in any hardship to the Veteran.

Finally, the Board notes that in February 2013, the minor child will reach the age of majority.  The appellant has not presented evidence showing that the minor child is permanently incapable of self-support prior to reaching age 18.  Thus, apportionment of the Veteran's benefits is only warranted from the date of the claim until February 2013, the date the minor child reaches the age of majority, unless she continue to qualify as a child of the Veteran after that date.  38 C.F.R. §§ 3.57, 3.450, 3.451 (2012). 


ORDER

A special apportionment of $360.00 per month of the Veteran's VA compensation payments is granted for the support of the minor child of the appellant.


____________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs