Citation Nr: 1304904 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-40 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an apportionment of the Veteran's VA benefits. ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from January 1944 to April 1946. The appellant is the ex-wife of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. The appellant is the Veteran's ex-wife; the Veteran and the appellant were divorced in January 1970. 3. The youngest child noted in the divorce decree turned age 18 on April [redacted], 1984. 3. A claim for an apportionment of the Veteran's VA compensation benefits was not received until February 2010 - approximately 40 years after the divorce. CONCLUSION OF LAW The criteria for apportionment of the Veteran's disability compensation payments have not 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 April 2010 decision and notice letter related to the contested claim. While the record does not show that the Veteran was provided a statement of the case or a supplemental statement of the case, the appellant's claim is being denied and the result is completely favorable to the Veteran. 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. In the present case, the appellant asserts that she is entitled to an apportionment of the Veteran's VA benefits. Specifically, she has argued that the Veteran was ordered to pay her child support (the record reflects they had two children who have been 18 years of age since 1984) and her house payment, which he never did. As such, she has argued that she is entitled to compensation from the Veteran that she never received. In support of her claim, the appellant submitted a court order in which the Veteran was to pay $40.00 per month in child support, as well as $63.62 per month for the house in which the appellant and their children were residing. The Board does not find the above mentioned court order to be persuasive. Significantly, this document was neither dated nor signed by a judge. The document itself suggests it was prepared in 1969. However, the date line is otherwise blank. Without a signature from either party or a judge, the validity of this court order is in question. A January 1970 divorce decree is also of record, however. This decree is signed by a judge and dated. According to the divorce decree, the Veteran was to pay $40.00 per month in child support. The appellant was to receive the house, subject to any outstanding indebtedness against it. The document makes no mention of the Veteran making house payments. Regardless of the conflicting documents above, however, apportionment of the Veteran's benefits is not warranted in this case. The Veteran and the appellant have been divorced since 1970. The appellant, who is no longer a spouse of the Veteran, did not file a claim until February 2010. There is no legal entitlement to an apportionment following a divorce, rendering the appellant ineligible for an apportionment after January 1970 as a matter of law. See 38 U.S.C.A. § 101(31); 38 C.F.R. §§ 3.1(j), 3.50. Furthermore, both of the children were over the age of 18 at this time, so the application for apportionment may not be construed as a claim for apportionment on behalf of their children as dependents. As VA law does not permit the appellant to receive a portion of the Veteran's disability compensation, she must seek legal recourse in another venue. As for the Board, it is bound in its decisions by the regulations of the Department, instructions of the Secretary and precedent opinions of the General Counsel of VA. See 38 U.S.C.A. § 7104(c); 38 C.F.R. § 20.101. As previously articulated, under governing VA law and regulations, the appellant is not eligible for an apportionment of the Veteran's VA disability benefits. The "benefit of the doubt" rule does not apply in simultaneously contested claims (such as this case) because the benefit of the doubt cannot be given to both an appellant and a veteran. See Elias v. Brown, 10 Vet. App. 259, 263 (1997). ORDER The claim of entitlement to an apportionment of the Veteran's benefits is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs