Citation Nr: 1323729 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 11-27 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an apportionment of the Veteran's VA compensation benefits for C.W. 2. Entitlement to an apportionment of the Veteran's VA compensation benefits for the appellant. 3. Entitlement to an apportionment of the Veteran's VA compensation benefits for T.W. WITNESSES AT HEARING ON APPEAL The appellant and C.W. ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1974, which includes service in the Republic of Vietnam. He received the Combat Action Ribbon. These matters come before the Board of Veterans' Appeals (Board) from a March 2011 decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In that decision, the RO denied entitlement to an apportionment of the Veteran's VA compensation benefits for the appellant and C.W. The appellant testified before the undersigned at a November 2012 hearing at the RO (Travel Board hearing). A transcript of that hearing has been associated with the claims folder. In June 2013, the Board granted the appellant's motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900 (c) (2012). 38 U.S.C.A. § 7107 (a)(2) (West 2002). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the appellant's claim. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. In a July 2012 statement (VA Form 21-4138) and during the November 2012 hearing, the appellant raised the issues of entitlement to an apportionment of the Veteran's VA compensation benefits for a stillborn child and entitlement to compensation benefits for a child born with spina bifida. These matters have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to an apportionment of the Veteran's VA compensation benefits for T.W. is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In November 2012, prior to the promulgation of a decision in the appeal, the appellant withdrew from appeal her claim for an apportionment of the Veteran's VA compensation benefits for C.W. 2. The appellant's claim for an apportionment of the Veteran's VA compensation benefits was received in November 2010; a divorce decree indicates that the marriage between the appellant and the Veteran was dissolved in September 2002. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant, as to the issue of entitlement to an apportionment of the Veteran's VA compensation benefits for C.W., have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for an apportionment of the Veteran's VA compensation benefits for the appellant have not been met. 38 U.S.C.A. §§ 101(31), 5307 (a)(2) (West 2002); 38 C.F.R. §§ 3.1(j), 3.50(a), 3.206, 3.450(a)(1)(ii), 3.451, 3.452(a), 3.458(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Apportionment for C.W. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative in writing or on the record at a hearing on appeal. Id. In the present case, the appellant stated on the record during the November 2012 hearing that she wished to withdraw from appeal the claim of entitlement to an apportionment of the Veteran's VA compensation benefits for C.W. As the appellant has withdrawn the appeal as to this issue, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issue on appeal, and it is dismissed. B. Apportionment for the appellant The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The VCAA 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, the VCAA is not applicable to this claim and no further discussion of the duty to notify or assist is necessary. Analysis A veteran's benefits may be apportioned if the veteran is not residing with his or her spouse or his or her children and a claim for apportionment is filed for or on behalf of the spouse or children. 38 C.F.R. § 3.452(a). 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. As applicable to this case, 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 and the veteran is not reasonably discharging his responsibility for the spouse'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). The second type of apportionment 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 apportioned between a veteran and his spouse 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 on whose behalf the apportionment is claimed, and the special needs of the veteran, his dependents, and the apportionment claimants. 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. Apportionment of more than 50 percent of a veteran's benefits is ordinarily considered to constitute undue hardship on him or her; but apportionment of less than 20 percent of his or her benefits is ordinarily considered insufficient to constitute a reasonable basis for any apportionee. 38 C.F.R. § 3.451. The special apportionment provides for an apportionment in situations where a veteran is reasonably discharging his responsibility for the support of any claimant who might be entitled to a "general" apportionment, but special circumstances exist which warrant giving "dependents" additional support. 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). The term "spouse" means a person of the opposite sex who is a wife or husband and whose marriage to a 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). "Marriage" means a marriage valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued. 3C.F.R. § 3.1(j). An appellant claiming to be the spouse of a veteran has the burden to come forward with preponderating evidence of a valid marriage under the laws of the appropriate jurisdiction. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). An apportionment claim is a "contested claim" and is subject to special procedural regulations as set forth in 38 C.F.R. §§ 19.100, 19.101, and 19.102 (2012). These procedures, in part, require that when a substantive appeal is filed, the content of the substantive appeal will be furnished to the other party to the extent that it contains information that could directly affect the payment or potential payment of the benefit that is the subject of the contested claim. 38 C.F.R. § 19.102. The Veteran in this case has not been furnished a copy of the substantive appeal (VA Form 9) filed by the appellant in October 2011. Nevertheless, while all of the special procedural requirements applicable to simultaneously contested claims were not followed in this case with respect to the Veteran, such errors do not result in any prejudice to the Veteran because, as will be discussed below, entitlement to an apportionment of his VA compensation benefits is being denied. Thus, the Board finds adequate compliance with the contested claims procedures. 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 the Veteran and the appellant. Elias v. Brown, 10 Vet. App. 259, 263 (1997). In this case, the evidence reflects that the appellant and the Veteran were married in February 1972. A Final Decree from the Circuit Court of Pittsylvania County, Virginia indicates that they were divorced in September 2002 on the grounds of continuous separation for a period in excess of one year. The validity of a divorce decree, regular on its face, will be questioned by VA only when such validity is put in issue by a party thereto or a person whose interest in a claim for VA benefits would be affected thereby. 38 C.F.R. § 3.206. The appellant has contended on numerous occasions that she was abused by the Veteran during their marriage and that such abuse was a factor in their divorce. Nevertheless, the appellant has neither disputed the validity of her divorce from the Veteran nor has she contended that she and the Veteran have otherwise re-established a marriage. Thus, the evidence is clear that when the appellant's apportionment claim was received by VA in November 2010, she was not married to the Veteran. The legal criteria in this case are clear and the pertinent facts are not in dispute. The appellant and the Veteran were legally divorced when the appellant's apportionment claim was received. Thus, the law does not recognize the appellant as the spouse of the Veteran for purposes of apportionment. While the Board is sympathetic to the appellant's situation, the Board has no authority to create exceptions, or to overturn or to disregard the very specific limitation on the award of an apportionment. 38 U.S.C.A. § 7104(a) (West 2002); see Harvey v. Brown, 6 Vet. App. 416, 423 (1994) (payments of money from the Federal Treasury are limited to those authorized by statute). The law is clear that in order to establish entitlement to an apportionment of the Veteran's VA compensation benefits, the appellant must be recognized as the Veteran's legal spouse at the time of her claim. 38 C.F.R. §§ 3.1(j), 3.50. The fact that the appellant was not legally married to the Veteran at the time of her claim forecloses eligibility for an apportionment of the Veteran's VA compensation benefits. Accordingly, this appeal is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The appeal, as to the issue of entitlement to an apportionment of the Veteran's VA compensation benefits for C.W., is dismissed. Entitlement to an apportionment of the Veteran's VA compensation benefits for the appellant is denied. REMAND In the March 2011 decision, the RO denied entitlement to an apportionment of the Veteran's VA compensation benefits for T.W. In April 2011, the appellant submitted a notice of disagreement with that decision. A statement of the case has not been issued as to the claim for an apportionment of the Veteran's VA compensation benefits for T.W. 38 U.S.C.A. § 7105(a) (West 2002). The Board is required to remand this claim for issuance of the necessary statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) The AOJ shall issue a statement of the case as to the issue of entitlement to an apportionment of the Veteran's VA compensation benefits for T.W. A copy of the statement of the case shall be provided to both the Veteran and the appellant. This issue shall not be certified to the Board unless a sufficient substantive appeal is submitted. The appellant and Veteran have the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs