Citation Nr: 1302823 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 10-36 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an apportionment of the Veteran's VA benefits on behalf of his minor children. ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from May 1990 to July 1990 and from March 1991 to May 1998. The appellant is the ex-wife of the Veteran and the mother of their four biological minor children. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, denying the appellant's claim for apportionment benefits on behalf of their minor children. The appellant requested that she be scheduled for a videoconference hearing in her September 2010 appeal to the Board (VA Form 9). However, in January 2011, she notified VA that she no longer desired to be scheduled for a hearing. FINDINGS OF FACT 1. The appellant is the Veteran's ex-wife and the mother of their four minor children; all with the initials J.H. 2. The Veteran is the biological father of the four minor children (J.H.). 3. The Veteran has failed to discharge his responsibility for the support of his four minor children (J.H.). 4. A showing of financial hardship on the part of the appellant is not necessary in awarding a general apportionment. CONCLUSION OF LAW The criteria for apportionment of the Veteran's disability compensation payments on behalf of his four minor cheildren have been met. 38 U.S.C.A. § 5307 (West 2002); 38 C.F.R. §§ 3.58, 3.450, 3.451, 3.452, 3.458 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION This appeal concerns a benefit provided under 38 U.S.C. Chapter 53. The statutes governing VA notice and assistance upon receipt of a claim for benefits do not apply to claims for benefits provided under chapters other than U.S.C. Chapter 51. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); 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 an October 2009 notice letter and a December 2009 decision related to the contested claim. Both parties were also advised of the applicable laws and regulations and provided the opportunity to provide testimony at a hearing if they so desired. VA has also obtained financial information from both parties. While the record contains no evidence of the Veteran's estimated monthly expenses, VA requested this information from the Veteran on multiple occasions. 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 the adjudication of this claim. A veteran's benefits may be apportioned if he 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). The term "spouse" means a person of the opposite sex who is a wife or husband where marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j). 38 U.S.C.A. § 101(31); 38 C.F.R. § 3.50(a). Under 38 C.F.R. § 3.1(j), the term "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 right to benefits accrued. 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(3); 38 C.F.R. §§ 3.1(j), 3.50. VA regulations provide for two types of apportionments. The first type is a "general" apportionment, which may be paid under 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 a veteran is not residing with his spouse or children, and a 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). No apportionment will be made where a veteran is providing for dependents. 38 C.F.R. § 3.450. 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 a 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. 38 C.F.R. § 3.451. Both of these types of apportionments (either "general" or "special" apportionment) are payable to a spouse or dependent. 38 U.S.C.A. § 5307(a)(2); 38 C.F.R. §§ 3.450(a)(1)(ii), 3.451. A claim for an apportionment is a "contested claim" and is subject to special procedural regulations as set forth in 38 C.F.R. §§ 19.100, 19.101, 19.102 (2012); see also 38 C.F.R. §§ 20.500-20.504 (2012). Under applicable criteria, all interested parties will be specifically notified of the action taken by the agency of original jurisdiction in a simultaneously contested claim and of the right and time limit for initiating an appeal, as well as hearing and representation rights. 38 C.F.R. § 19.100. The appellant contends that she is entitled to an apportionment of the Veteran's VA disability compensation benefits on behalf of their minor children. In January 2012, the Veteran's representative asserted that it was against the standards of equity and good conscience to allow the apportionment of benefits because the appellant's gross income exceeded her monthly expenses. On July 21, 2009, VA received a claim from the appellant seeking apportionment of the Veteran's benefits on behalf of their children. It was noted that she had been separated from the Veteran since May 2009. She reported four children, all with the initials J.H. These children were all under the age of 18 at the time of receipt of the appellant's claim, having been born in July 1993, February 1994 and May 1995. The record reflects that the appellant and the Veteran were subsequently divorced in July 2010. The divorce decree awarded sole custody to the appellant. The appellant also reported her own daughter, S.W., who was noted to be the step-daughter of the Veteran. However, the Board record contains no evidence to suggest that the Veteran ever adopted S.W., and as such, he does not appear to have any financial obligations to this individual. Furthermore, the record reflects that S.W. was born in July 1990. As such, she was over 18 years of age at the time of receipt of the appellant's claim. Apportionment of the Veteran's benefits on behalf of this child is not warranted. However, the evidence of record demonstrates that apportionment of the Veteran's benefits is warranted for his four minor children with the initials J.H. The record reflects that the appellant's claim was previously denied because she failed to demonstrate a financial need. However, as already noted, it is not necessary for the claimant to establish the existence of hardship in order to obtain a general apportionment under 38 C.F.R. § 3.450. See Hall v. Brown, 5 Vet. App. 294 (1993). In the present case, the Veteran was ordered to pay child support in an amount to be determined by the Court. There is no evidence that the Veteran has provided support or financial assistance to his four minor children. The record reflects that he has been in receipt of additional benefits as a result of these children, however, since the May 2009 separation from his wife. As such, apportionment of these additional benefits on behalf of the Veteran's minor children is warranted. The Board has considered whether apportionment of the Veteran's benefits may result in undue hardship to him. Regardless of whether the Veteran is reasonably discharging his responsibility for his children's support, apportionment may not be awarded if it results in undue hardship to the Veteran. 38 C.F.R. § 3.451 (2012). In the present case, the Veteran has a total monthly income of $4,509.50. $3,157.00 of this income is a result of his VA disability benefits. The Veteran's VA benefits have been increased for his minor children. There is no evidence of record to suggest that the Veteran would suffer an undue hardship in apportioning these additional benefits to for his minor children. Despite requests made on the part of VA, the Veteran has failed to provide an assessment of his monthly expenses. Finally, the Board notes that the RO concluded that the Veteran was effectively discharging his responsibility to his children because they were in receipt of Social Security Administration (SSA) benefits of $169.00 per month based on the Veteran's entitlement to SSA benefits. However, the fact that monthly payments are provided to the children's mother by SSA does not demonstrate that the Veteran has in fact discharged his duty to his children. It is significant to note that VA apportionment decisions are not determined by other government benefit payment programs. The Veteran has been in receipt of additional VA benefits as a result of his minor children since he ceased providing them financial support. There is no evidence to suggest that an apportionment of these extra benefits to the appellant on behalf of the minor children would result in any undue hardship to the Veteran. Therefore, apportionment of the additional benefits received for these children, prior to their eighteenth birthdays, is warranted. Since the Veteran's children do not reside with him, and since he does not otherwise contribute to their support, we find that apportionment of the additional compensation benefits the Veteran has received on behalf of his minor children is warranted. The claim is granted in this regard. ORDER Apportionment of the Veteran's VA benefits on behalf of his minor children prior to their eighteenth birthdays is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs