Citation Nr: 1324234 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 04-00 248A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an apportionment of the Veteran's disability compensation benefits prior to July 15, 2009. ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1976 to April 1978. The Appellant is his ex-wife, who seeks apportionment of the Veteran's disability compensation benefits on her own behalf. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2002 letter determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied the Appellant's claim because the record indicated that she was no longer married to the Veteran. The Appellant perfected an appeal to the Board, and in June 2005, the Board remanded the claim for further development. The claim was again before the Board in January 2006, at which time it was determined that the Appellant was still married to the Veteran and thus eligible for an apportionment of benefits. As a result, the Board remanded the Appellant's claim for additional development and adjudication of the claim on the merits. When the Appellant's claim came before the Board again in February 2010, the Board remanded the Appellant's claim for further development. The claim has been returned to the Board for further appellate consideration. The record shows that prior to the Board's June 2005 remand, the Appellant failed to appear at two scheduled hearings before a Veterans Law Judge. Without good cause shown for the failure to appear, the Appellant's request for a hearing is deemed withdrawn. 38 C.F.R. § 20.702(d) (2012). In a May 2012 written statement, the Veteran requested a personal hearing with respect to the issue on appeal. Written statements submitted in November 2012 by the Veteran and his representative indicated that the Veteran wished to withdraw his request for a hearing. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (2012). FINDINGS OF FACT 1. In November 2002, the Appellant filed a claim for apportionment of the Veteran's VA disability compensation benefits on her own behalf. 2. During the period on appeal, the Veteran has been receiving VA disability compensation benefits for schizophrenia, paranoid, with a disability rating of 50 percent. 3. During the period on the appeal, the Veteran's award has not included additional benefits for dependents, to include the Appellant as his dependent spouse. 4. The Appellant has not provided clear and accurate information regarding her monthly income and expenses. 5. No reasonable apportionment of the Veteran's VA disability compensation benefits may be made to the Appellant without causing undue hardship to the Veteran. CONCLUSION OF LAW The requirements for an apportionment of the Veteran's VA disability compensation benefits have not been met. 38 U.S.C.A. § 5307 (West 2002); 38 C.F.R. §§ 3.450, 3.451, 3.458(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Clams Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Court of Appeals for Veterans Claims (Court) has, however, carved out exceptions to the VCAA's applicability. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). One of those exceptions is for claims that involve chapters of the United States Code other than chapter 51, the chapter applicable to "claims, effective dates, and payments." The Court held the VCAA inapplicable to chapter 53 benefits in both Barger v. Principi, 16 Vet. App. 132, 138 (2002) and Lueras v. Principi, 18 Vet. App. 435 (2004). As the claim in this case involves Chapter 53 benefits, specifically, the apportionment of benefits under 38 U.S.C.A. § 5307, the VCAA is inapplicable to the claim on appeal. There are, however, other notification and procedural requirements with regard to this claim. 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). The term "simultaneously contested claim" refers to the situation in which the allowance of one claim results in the disallowance of another claim involving the same benefit, or the allowance of one claim results in the payment of a lesser benefit to another claimant. 38 C.F.R. § 20.3(p) (2012). Under the applicable regulations, 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 addition, 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. When a substantive appeal is filed in a simultaneously contested claim, the content of the substantive appeal will be furnished to the other contesting parties 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. In this case, the Appellant is claiming entitlement to an apportionment of the Veteran's VA disability compensation benefits for the period prior to July 15, 2009. The record reflects that the Appellant is the Veteran's ex-wife but was legally married to the Veteran at the time she filed her claim for apportionment in November 2002. The claims file reflects that from January 1, 1992 through July 15, 2009, the Veteran was service-connected for schizophrenia, paranoid, with an evaluation of 50 percent. In its June 2005 remand, the Board instructed that the Appellant and the Veteran be provided with VCAA notice letters and that the RO furnish the Veteran with a copy of all statements of the case, supplemental statements of the case, and the contents of the Appellant's substantive appeal. The record reflects that the requested documents were provided to the Appellant and the Veteran. In January 2006, the Board remanded the Appellant's claim and instructed that the RO advise the Appellant and the Veteran of any additional evidence, to include financial status data, needed to adjudicate the issue of entitlement to an apportionment of the Veteran's VA disability compensation benefits. In April 2006, the Veteran was provided with notice in accordance with the VCAA. The record also demonstrates that the RO notified the Appellant in April 2009 of any additional evidence needed to adjudicate the claim and requested that she provide an itemized list of her monthly income and expenses. In February 2010, the Board remanded the Appellant's claim to ensure that all development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) were fully complied with and to ensure compliance with the contested claims procedures applicable to matters involving two competing parties. See 38 C.F.R. §§ 19.100-19.102, 20.500 - 20.504 (2012). The RO was also instructed to provide the Veteran's representative with the December 2003 Statement of the Case and the April 2005 Supplemental Statement of the Case. In addition, the RO was instructed to consider all additional evidence received since the issuance of the June 2009 Supplemental Statement of the Case and readjudicate the issue on appeal. In May 2012, the RO provided the Appellant and the Veteran the notice in compliance with the above cited regulations. The RO also readjudicated the claim in a December 2012 Supplemental Statement of the Case, and in March 2013, the Veteran's representative reported that it had reviewed the Veteran's claims file and received all Statements of the Case and Supplemental Statements of the Case. As such, the Board finds the RO substantially complied with the June 2005, January 2006, and February 2010 remand directives with respect to the issue on appeal. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Under 38 U.S.C.A. § 5307, if the veteran is not residing with his spouse and/or if the veteran's child is not in the veteran's custody, all or any part of the compensation or pension 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. Specifically, 38 C.F.R. § 3.450 (a)(1)(ii) provides that an apportionment may be paid to the veteran's spouse if they are not residing together and for the veteran's child if the child is not in the veteran's custody, and the veteran is not reasonably discharging his responsibility for the spouse's and/or child's support. 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. This 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 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 on whose behalf the apportionment is claimed, and the special needs of the veteran, his dependents, and the apportionment claimants. An apportionment of more than 50 percent of the veteran's benefits is ordinarily considered to constitute undue hardship on him, while apportionment of less than 20 percent of his benefits is ordinarily considered insufficient to constitute a reasonable basis for any apportionee. 38 C.F.R. § 3.451. The special apportionment was designed to provide 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 may not be apportioned until the estranged spouse of a veteran files a claim for an apportioned share. 38 C.F.R. § 3.458(g) (2012). 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 benefits, effective from the date of their divorce. See 38 U.S.C.A. § 101(31) (West 2002); 38 C.F.R. §§ 3.1(j), 3.50 (2012); Marrero v. Gober, 14 Vet. App. 80, 82 (2000). 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) (2012). In such cases where the Veteran is incarcerated, a portion of disability compensation benefits is withheld (or it could be said that the compensation benefits paid to the incarcerated person are reduced) following the 61st day of incarceration but that withheld portion is subject to apportionment to a dependent of the incarcerated person if certain other requirements are met. 38 U.S.C.A. § 5313(a)(1) (West 2002); 38 C.F.R. § 3.655(a) (2012). The evidence demonstrates that the Veteran and his wife were married in August 1987 but have not resided together since approximately 1994. In her November 2002 claim, the Appellant asserted that she needed $200.00 of the Veteran's benefits as she was moving out of her son's apartment. In her February 2003 notice of disagreement, the Appellant stated that she and the Veteran had been separated for the last six or seven years. In a May 2009 written statement, the Veteran asserted that he and the Appellant had initially separated in approximately 1994 or 1995. The Veteran's son also submitted a May 2009 written statement attesting that the Veteran and the Appellant had been separated on or about 1994 or 1995. In April 2010, the Veteran submitted a divorce decree entered by an Indiana court dissolving the marriage with the Appellant as of July 15, 2009. Therefore, the Appellant is potentially only eligible for apportionment as the Veteran's spouse for the period from the date of her initial claim to when the divorce decree was entered. Here, the evidence shows that the Veteran was ordered to pay the Appellant $108.33 per month for child support for a period through October 2006. The Board notes that the Appellant has not submitted any evidence demonstrating that the Veteran had been ordered to provide spousal support at any time since their separation and had failed to discharge that responsibility. The Board also notes that during the relevant period, the Veteran was not being paid benefits for any dependents, to include the Appellant as a dependent spouse. The evidence of record shows the Veteran's receipt of disability compensation benefits during the relevant period on appeal was as follows: from December 2002 to May 2003, he received $633.00; from May 2003 to December 2003, he received $103.00, with $530.00 withheld due to incarceration; from December 2003 to December 2004, he received $106.00, with $540.00 withheld due to incarceration; from December 2004 to March 2006, he received $108.00, with $555.00 withheld due to incarceration; from March 2006 to December 2006, he received $690.00; from December 2006 to February 2007, he received $712.00; from February 2007 to October 2007, he received $115.00, with $597.00 withheld due to incarceration; from October 2007 to December 2007, he received $728.00; from December 2007 to May 2009, he received $728.00; and from May 2009 through the end of the period on appeal, he received $815.00. During some of these periods, the Veteran had additional withholding due to Court ordered garnishment for past due child support. In June 2003, the Appellant reported that she was unemployed and had no income. In October 2004, the Appellant stated that she needed the apportionment to help pay her bills. In December 2004, the Appellant reported that the Veteran was incarcerated and that she was homeless and needed assistance. In May 2006, the Veteran submitted a Financial Status Report that reflected a total monthly net income of $243.50 and total monthly expenses of $500.00. In April 2009, the RO requested that the Appellant and the Veteran provide information regarding the names and relationships of anyone else living in their households. The RO also requested that the Appellant and Veteran complete and return VA Form 21-0788, Information Regarding Apportionment of the Beneficiary's Award. In April 2009, the Veteran submitted a VA Form 21-0788 that showed a monthly income of $770.00 and total monthly expenses of $825.00. In May 2009, the Veteran provided further information that indicated he had a total monthly income of $815.00 and total monthly expenses of $1045.00. The Veteran also asserted that he currently shared an apartment with his son, who received $560.00 a month from Social Security Income and SNS. The Veteran reported that his son contributed $300.00 per month toward the rent, water, and electricity. He averred that if the VA were to grant apportionment of his benefits to the Appellant, he and his son would become homeless. In May 2009, the Appellant submitted a written statement that she needed an apportionment in order to survive and get on her feet. She stated that she needed the apportionment to get an apartment and clothing so that she could look for work. The Appellant also submitted a signed VA Form 21-0788, which indicated that she had no monthly income, net worth, or monthly expenses during the period on appeal. A May 2012 telephone report of general information shows that the Appellant reported an income of $50.00 to $100.00 per week from 2002 through 2011. She stated that she had no property or bank accounts. The Appellant reported that her monthly expenses ranged from $100.00 to $120.00 per month during the relevant period and that the Veteran had not provided any support. In a December 2012 Statement of the Case, the RO emphasized to the Appellant that she had failed to provided the requested financial information. She was advised that absent specific information showing an itemized list of her income and expenses, there was no basis upon which to grant her claim for an apportionment. Here, the Board finds that the evidence does not demonstrate that the Veteran was not "reasonably discharging his responsibility" for the Appellant during the period on appeal. First, the record demonstrates that from June 2004 to October 2007 the Veteran paid the Appellant for child support. In addition, the Board finds it significant that although the Appellant initially reported no monthly income, in May 2012 she stated that she had a surplus of income at the end of each month from 2002 through 2011. Further, the Appellant has not provided the necessary financial information to support a grant of an apportionment. While VA has a duty to assist appellants in obtaining information, there is a corresponding duty on the part of the appellants to cooperate with VA in developing claims. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). VA's duty must be understood as a duty to assist appellants in developing claims rather than a duty on the part of VA to develop entire claims with the appellants performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). Here, despite repeated requests for her itemized monthly income and expenses, the Appellant has only provided generalized statements showing inconsistent financial information for the period on appeal. The Board has considered the Appellant's written statements and reported information. Questions of credibility notwithstanding, the Board has been unable to compile a complete and accurate accounting of the Appellant's monthly income and expenses from the information she has provided. In addition, the evidence does not demonstrate that the Veteran has had a surplus of monies to meet additional expenses at the end of each month. Thus, it appears that even the most minimal level of apportionment of the Veteran's compensation benefits would cause undue hardship to the Veteran. As the total benefit payable to the Veteran does not permit the payment of a reasonable amount to the Appellant, the Veteran's benefits cannot be apportioned. 38 C.F.R. §§ 3.451, 3.458(a). In light of the foregoing, the Board concludes that the Appellant is not entitled to an apportionment of the Veteran's disability compensation benefits prior to July 15, 2009. 38 U.S.C.A. § 5307; 38 C.F.R. §§ 3.450, 3.451, 3.452, 3.458. ORDER Entitlement to an apportionment of the Veteran's disability compensation benefits is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs