Citation Nr: 1314962 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 08-13 251A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to apportionment of the Veteran's disability compensation benefits on behalf of his child. REPRESENTATION Veteran represented by: Justin G. Holbrook, Esq. ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1964 to April 1969. The appellant is the Veteran's daughter. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2007 administrative decision by the VA Regional Office (RO) in Indianapolis, Indiana which denied the appellant's claim of entitlement to apportionment of the Veteran's VA disability compensation benefits. The Board observes that the June 2007 RO administrative decision was confirmed in a March 2008 statement of the case (SOC). Notably, 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. Upon the filing of a notice of disagreement in a simultaneously contested claim, all interested parties will be furnished with a copy of the Statement of the Case. 38 C.F.R. § 19.101. Pertinently, a review of the claims folder does not indicate whether the Veteran received notice of the June 2007 SOC. However, as will be discussed below, the Board finds that the appellant is not eligible for entitlement to apportionment of the Veteran's disability compensation benefits. Accordingly, as the decision rendered below is in the Veteran's favor, the Board finds that the lack of receipt of the June 2007 SOC by the Veteran is harmless error. The Board notes that evidence has been associated with the Veteran's claims folder accompanied by a waiver of local consideration. This waiver is contained in the Veteran's claims folder. See 38 C.F.R. §§ 19.9, 20.1304(c) (2012). FINDINGS OF FACT 1. The appellant is the Veteran's daughter. 2. In March 2007, the appellant filed a claim for an apportionment of the Veteran's VA benefits. 3. At the time of the March 2007 claim for apportionment, the appellant was 39 years old; the evidence did not show that before reaching the age of 18 years, she became permanently incapable of self-support. CONCLUSION OF LAW The requirements for an apportionment of the Veteran's VA compensation benefits on behalf of his daughter have not been met. 38 U.S.C.A. §§ 5107, 5307 (West 2002); 38 C.F.R. §§ 3.57, 3.159, 3.450 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-2097 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002). The United States Court of Appeals for Veterans Claims (Court ) has held, however, that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also Valiao v. Principi, 17 Vet. App. 229, 232 (2003) ('Where the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision, the case should not be remanded for development that could not possibly change the outcome of the decision.'). The Board notes that resolution of this appeal is based on facts that are not in dispute, and dependent solely on interpretation of the statutes and regulations pertaining to eligibility for entitlement to apportionment of the Veteran's disability compensation benefits based on the appellant's age. VA has no further duty, therefore, to notify the appellant or Veteran of the evidence needed to substantiate the appellant's claim, or to assist her in obtaining that evidence, because no reasonable possibility exists that any further assistance would aid her in substantiating the claim. See 38 U.S.C.A. § 5103A (West 2002); Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). Apportionment of the Veteran's disability compensation benefits Pertinent legal criteria Under 38 U.S.C.A. § 5307, if a Veteran's child is not in his custody, all or any part of the compensation payable on account of the Veteran may be apportioned as may be prescribed by the Secretary. 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. More specifically, the law provides that all or any part of the Veteran's compensation 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 and children's support. 38 U.S.C.A. § 5307; 38 C.F.R. §§ 3.450, 3.452. 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 of apportionment is a "special" apportionment which may be paid under the circumstances set forth in 38 C.F.R. § 3.451. That regulation provides that, without regard to any other provision regarding apportionment, 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. 38 C.F.R. § 3.451 further provides that apportionment of more than 50 percent of the Veteran's benefits is ordinarily considered to constitute undue hardship on him or her while apportionment of less than 20 percent of his or her benefits is ordinarily considered insufficient to constitute a reasonable basis for any apportionee. A Veteran's benefits will not be apportioned where the total benefit payable to the disabled person does not permit payment of a reasonable amount to any apportionee. 38 C.F.R. § 3.458(a). Pursuant to 38 C.F.R. § 3.57, except as provided in paragraphs (a)(2) and (3) of this section, the term "child of the Veteran" means an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the Veteran's household or was a member of the Veteran's household at the time of the Veteran's death, or an illegitimate child; and (i) Who is under the age of 18 years; or (ii) Who, before reaching the age of 18 years, became permanently incapable of self-support; or (iii) 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 educational institution approved by the Department of Veterans Affairs. See also 38 U.S.C.A. 101(4)(A), 104(a)) Factual Background and Analysis The appellant is the daughter of the Veteran, who was born in June 1967. Of record is a copy of the appellant's birth certificate which shows that the Veteran is the appellant's father. In March 2007, the appellant filed the present claim for an apportionment. She indicated that she was in desperate need of financial assistance because her house was devastated in a fire and she was attempting to maintain her employment as well as raise her four children and three grandchildren. She therefore requested apportionment of the Veteran's VA disability compensation benefits. After reviewing the pertinent evidence, the Board finds that the requirements for an apportionment of the Veteran's VA compensation benefits have not been met. Specifically, the Board notes that at the time that the appellant filed a claim in March 2007, she was over the age of 18. Indeed, the appellant provided a copy of her birth certificate verifying that she was born in June 1967. Moreover, the evidence of record does not show that the appellant became permanently incapable of self-support before reaching 18 years of age. On the contrary, the appellant indicated that she is currently employed. See the appellant's claim for apportionment of the Veteran's disability compensation benefits dated in March 2007. Finally, there is no indication that after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) the appellant pursued a course of instruction at an educational institution approved by the Department of Veterans Affairs. Essentially, the appellant has failed to provide evidence that she is a "child" as defined by 38 C.F.R. § 3.57 at the time she filed her claim. Accordingly, based on the evidence of record, the requirements for an apportionment under 38 C.F.R. § 3.450 have not been met. As the law in this case is dispositive, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). For the foregoing reasons, the Board concludes that the criteria for an apportionment of the Veteran's VA compensation benefits to the appellant are not met. 38 C.F.R. §§ 3.450, 3.451. 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 parties. Elias v. Brown, 10 Vet. App. 259, 263 (1997). Accordingly, the appeal is denied. ORDER Entitlement to apportionment of the Veteran's disability compensation benefits on behalf of the appellant is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs