Citation Nr: 1324335 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 09-19 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to apportionment of the Veteran's VA benefits for the time period from October 17, 2007 to August [redacted], 2009. WITNESSES AT HEARING ON APPEAL Veteran and Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to June 1969 and from March 1971 to March 1974. The appellant was legally married to the Veteran from March 1971 to August [redacted], 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the appellant apportionment of the Veteran's VA benefits. The Board remanded the claim in June 2011 in order to provide the appellant and the Veteran with a hearing before the Board. The Veteran provided testimony before Veterans Law Judge (VLJ) D.C. Spickler in July 2011. A transcript is of record. The Board remanded the claim in November 2011 as the appellant had not been provided notice of the July 2011 hearing, or an opportunity to provide testimony before the Board. The appellant provided testimony before VLJ Chiappetta in February 2012. A transcript is of record. The law requires that the VLJ who conducts a hearing on appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707. When two hearings have been held by different VLJs concerning the same issue, the matter must be decided by a panel of not less than three VLJs. 38 U.S.C.A. § 7102(a); 38 C.F.R. § 19.3. In April 2011, the Court of Appeals for Veterans Claims (Court) held that a claimant is entitled to have an opportunity for a hearing before all VLJs who will ultimately decide the appeal. Arneson v. Shinseki, 24 Vet. App. 379 (2011). In letters dated May 2012 and August 2012, the Veteran and the appellant were offered the opportunity of having an additional hearing with a VLJ who would be assigned to the panel to decide this appeal. Neither party requested another hearing. A review of the Virtual VA electronic storages system does not reveal any additional documents relevant to this appeal. FINDINGS OF FACT 1. The appellant was legally married to the Veteran from March 1971 to August [redacted], 2009. 2. The appellant filed a claim of entitlement to apportionment of the Veteran's VA benefits on October 17, 2007. 3. An apportionment of the Veteran's VA benefits would constitute an undue financial hardship on the Veteran. 4. The appellant voluntarily withdrew from the marital relationship with the Veteran in 1974 without adequate legal reason, and the Veteran has reasonably discharged his responsibility for the appellant's support. 5. The appellant is not entitled to apportionment for VA benefits for the time period from October 17, 2007 to August [redacted], 2009 as the Veteran had no legal duty of spousal support. CONCLUSION OF LAW The criteria for entitlement to apportionment of the Veteran's VA benefits for the time period from October 17, 2007 to August [redacted], 2009 have not been met. 38 U.S.C.A. § 5307 (West 2002); 38 C.F.R. §§ 3.450, 3.451, 3.458 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks an apportionment of the Veteran's VA benefits for the time period from October 17, 2007 to August [redacted], 2009, which is the time frame between when she filed an apportionment claim (and was legally married to the Veteran) and the date she became legally divorced from the Veteran. The Board has rephrased the issue on the title page to reflect the benefits being sought by the appellant, as stated in her February 2012 hearing before the Board. When a veteran is not residing with his or her spouse, all or any part of the compensation benefits payable may be apportioned as may be prescribed by the Secretary. 38 U.S.C.A. § 5307(c). One type of apportionment is a "general apportionment" where an apportionment may be paid if the veteran's spouse is not living with the veteran and the veteran is not reasonably discharging his responsibility for the spouse's support. 38 C.F.R. § 3.450(a)(1)(ii). It is not necessary for the claimant (here, the appellant) to establish the existence of hardship in order to obtain an apportionment under 38 C.F.R. § 3.450. Hall v. Brown, 5 Vet. App. 294 (1993). A 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. Section 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 apportionment. VA regulations contain certain bars to apportionment of a veteran's benefits under certain situations. For example, 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). Additional exceptions at 38 C.F.R. § 3.458(b)-(g) clearly do not apply, including 38 C.F.R. § 3.458(b) as there is no allegation of the appellant being found guilty of conjugal infidelity by a court having proper jurisdiction. The record reflects that the Veteran and the appellant were married on March 8, 1971. The Veteran was initially awarded VA compensation benefits, at the 10 percent level, in September 1974 and at the 20 percent level in October 1974. The Veteran never sought to add the appellant as a dependent. The record next reflects that, in February 1976, the Veteran fathered a child with a woman other than the appellant. On VA Compensation and Pension (C&P) examination in June 1979, the Veteran reported that he had separated from the appellant in 1974. He stated that the appellant left him due to his changeable and irritable attitude. On VA examination in November 2002, the Veteran reported being divorced from the appellant, and living with his fiancée. A VA Form 21-526 filing in May 2003 included the Veteran's report that he had been divorced from the appellant. On October 17, 2007, the appellant filed a claim for apportionment of the Veteran's VA benefits. She submitted a VA Form 21-0788 (Information Regarding Apportionment of Beneficiary's Award) in January 2008 reflecting that her only income of $204 was in public assistance benefits, and that she had monthly financial obligations of $165 for food, $250 for utilities, and $11 for telephone. She also had a $275 a year payment for housing. She reported being married to the Veteran, and that the Veteran was not living with another person or holding himself out openly to the public as the spouse of another. At that time, the Veteran's rating decisions reflect that he was in receipt of a combined service-connected disability rating of 60 percent, plus an award of special monthly compensation under 38 U.S.C.A. § 1114(k). This amounted to a monthly payment of $990 from October 17, 2007 to November 31, 2007, $1,012 from December 1, 2007 to November 31, 2008, and $1,070 from December 1, 2008 to August [redacted], 2009. A Divorce Decree issued by the Court of Common Pleas of Delaware County, Pennsylvania reflects that the Veteran was legally divorced from the appellant on August [redacted], 2009. In March 2011, the Veteran submitted a VA Form 21-0788 reflecting his monthly income of $1,700 in VA compensation benefits (which is the correct amount of compensation for that time frame), and $562 of Social Security Benefits on behalf of his son. His only asset was a 2007 Dodge Nitro which he owned in full. He had monthly expenses of $1,100 for housing, $250 for food, $300 for utilities, $50 for telephone, and $200 for car insurance and medical expenses which were not itemized. The Veteran declared that the appellant was his ex-wife, that he did not know where she resided, and that she had never requested any financial contributions. In July 2011, the Veteran testified that he had been separated from the appellant since 1974. She had requested the separation. Since that time, he denied having any type of relationship with the appellant whatsoever with the exception of her occasionally sending him a card. He had not sought a formal divorce until 2009, when he decided he was ready to remarry. He had last seen the appellant approximately 4 to 5 years prior at a funeral. The Veteran could not recall ever claiming her as a dependent for VA pay purposes, and stated that the appellant had never requested financial assistance prior to filing her apportionment claim. He had three children which were not biological children of the appellant. He was helping to financially support one daughter through college, and he paid his 19-year old son $500 per month. In February 2012, the appellant testified that she was seeking apportionment benefits from the time of the filing of her claim until the date of divorce. She stated that she filed the apportionment claim based upon financial need, and that she was disabled. On this record, the Board first finds that the appellant was legally married to the Veteran from March 1971 to August [redacted], 2009. The record contains official documents issued by the Commonwealth of Pennsylvania acknowledging a legal marriage between the Veteran and the appellant which occurred on March 8, 1971. The record also includes a Divorce Decree issued by the Court of Common Pleas of Delaware County, Pennsylvania that reflects that the Veteran was legally divorced from the appellant on August [redacted], 2009. There is no dispute of fact on these issues. The appellant filed a claim for entitlement to an apportionment of the Veteran's VA benefits on October 17, 2007. She seeks an apportionment of the Veteran's VA benefits for the time period from October 17, 2007 to August [redacted], 2009. The appellant essentially alleges that the Veteran had a legal and moral obligation to financially support her during this time period. The Veteran disagrees. The Board finds that the appellant is not entitled to any type of apportionment as apportioning any of the Veteran's VA compensation would result in an undue hardship to the Veteran. The Veteran has not submitted an income and expense form specifically covering the time period from 2007 to 2009. As stated above, the Veteran received monthly VA compensation in the amounts of $990 from October 17, 2007 to November 31, 2007, $1,012 from December 1, 2007 to November 31, 2008, and $1,070 from December 1, 2008 to August [redacted], 2009. The Veteran submitted an income and expense statement covering his financial situation in March 2011, and the Board has no reason to believe that his basic financial situation has appreciably changed since 2007. This report showed a total monthly income of $1,700 consisting entirely of VA compensation benefits, and monthly expenses of $1,900. His expenses appear to be reasonable and customary for the necessities of basic living, and do not include any unreimbursed medical expenses or other reasonable expenses such as clothing. The Veteran has no significant assets, and monies received from the Social Security Administration are dedicated to his dependent son. The appellant has not disputed any of the information provided by the Veteran. As such, the Board finds that an apportionment of the Veteran's VA benefits would constitute an undue financial hardship on the Veteran which precludes any type of apportionment in this case as the Veteran's income does not cover the basic necessities of living. To the extent it can be argued that the Veteran has sufficient income to apportion (or that additional financial information is necessary), the Board further finds that the Veteran has no legal obligation to provide any financial support to the appellant. The Veteran's testimony and statements of record reflect that the appellant deserted him in 1974, and that there has been no resumption of marital relations since that time. His assertions are consistent with the documentary evidence of record, which includes his June 1979 report that the appellant left him, his reported beliefs in 2002 and 2003 that he had been "divorced" from the appellant and the fact that he never claimed the appellant as a dependent for VA compensation purposes. These statements are particularly trustworthy as they were made many years prior to the appellant seeking apportionment benefits. The appellant does not dispute any statement made by the Veteran. She has also offered no reason as to the cause of her separation from the Veteran in 1974. The only evidence as to the reason for separation is contained in the Veteran's June 1979 report that the appellant separated from him due to his changeable and irritable attitude, and his July 2011 testimony that the appellant had requested the separation. Again, the Board must reiterate that the appellant has not offered any reason explaining why she left the marital home in 1974. The Board finds no specific VA regulation or court precedent which covers the situation at hand. VA regulations do contain similar provisions concerning the status of a "surviving" spouse, see 38 C.F.R. §§ 3.50-53, but the Veteran is not deceased. Nonetheless, the fact that the appellant deserted the Veteran almost 30 years prior to seeking apportionment benefits seems a proper factor for consideration in this appeal. The surviving spouse provisions include a continuous cohabitation requirement in the context of a separation. 38 C.F.R. § 3.53. First, the spouse must be free of fault at the time of the separation; and second, the separation must be due to the veteran's misconduct or procured by the veteran. See Gregory v. Brown, 5 Vet. App. 108, 112 (1993). The absence of fault on the part of the surviving spouse is to be determined solely at the time of the separation; conduct subsequent to that time is relevant only to the extent that it illuminates the question of fault at the time of the separation. Id. Further, "a separation by mutual consent does not constitute desertion unless the separation resulted from misconduct or communication of a definite intent to end the marriage by the surviving spouse." Alpough v. Nicholson, 490 F.3d 1352, 1357 (Fed.Cir.2007). Here, the undisputed evidence of record reflects communications and actions from the appellant of a definite intent to end her marriage with the Veteran. This fact is established by the Veteran's own statements as early as 1976 that the appellant separated from him. He confirmed that the appellant sought a separation during his July 2011 hearing. The appellant has offered no evidence to the contrary. Additionally, the Board finds no evidence of record that the separation which occurred in 1974 was due to the Veteran's misconduct or procured by the Veteran. The only reason cited comes from the Veteran in his 1976 statement indicating that the appellant separated from him due to his changeable and irritable attitude. There is no evidence of misconduct by the Veteran, such as infidelity, verbal abuse, physical abuse, etc. The appellant has offered no evidence that her separation from the Veteran in 1974 was due to misconduct on the part of the Veteran, or was procured by the Veteran. For additional guidance, the Board has also looked to Pennsylvania state law to determine whether the Veteran would have a legal obligation to provide financial support to the appellant. The Pennsylvania general statutes state that, unless otherwise provided, married persons are liable for the support of each other according to their respective abilities to provide support as provided by law. 23 PA. CONS. STAT. ANN § 4321. An exception to the obligation to pay spousal support exists when the spouse seeking financial support conducts himself or herself in a manner which would constitute grounds for a fault-based divorce. See S.M.C. v. W.P.C., 44 A.3d 1181, 1185 (Pa.Super. 2012), citing Hoffman v. Hoffman, 762 A.2d. 766, 770 (Pa.Super. 2000) (en banc). One ground for fault-based divorce includes committing willful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for the period of one or more years. 23 PA. CONS. STAT. ANN § 3301(a). The burden is upon the spouse who has withdrawn from the marital domicile that the conduct of the other spouse justified leaving the marital relationship or that the other spouse consented to the separation. Commonwealth ex. rel. Arbitman v. Arbitman, 55 A.2d. 586 (Pa.Super. 1947). Here, the appellant has offered no testimony concerning the reason for her withdrawal from the marital relationship in 1974. The only reason offered by the Veteran himself, which is credible and uncontradicted, is that he had a mood disorder. Notably, the Veteran is service-connected for posttraumatic stress disorder (PTSD), which is a disability affecting mood. See generally 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board finds that this reason alone does not rise to a justifiable reason under Pennsylvania law for leaving the marital relationship, as the mere reason that a spouse was unbearable mood-wise is not sufficient legal justification. See, e.g., Commonwealth v. Popkin, 69 A.2d. 160 (Pa.Super. 1949); Commonwealth ex. rel. V. Lipschultz v. H. Lipschultz, 117 A.2d. 793 (Pa.Super. 1955). As such, the Board finds that the appellant voluntarily withdrew from the marital relationship with the Veteran in 1974 without adequate legal reason, and that the Veteran has reasonably discharged his responsibility for the appellant's support. Based upon the above, the Board finds that the appellant is not entitled to apportionment for VA benefits for the time period from October 17, 2007 to August [redacted], 2009. In so finding, the Board has found that the Veteran's statements and testimony of record are credible and uncontradicted by any evidence of record. On the other hand, the Board does not necessarily make any negative credibility determination on the part of the appellant's statements and testimony as she has offered no evidence which affects material findings of fact. The claim, therefore, is denied. Finally, the Board notes that this appeal concerns a benefit provided under chapter 53 of title 38 of the United States Code. The rules governing VA notice and assistance upon receipt of a claim for benefits, as outlined in 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010) and 38 C.F.R. § 3.159, do not apply to claims for benefits provided under chapters other than chapter 51. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). However, VA regulations include special procedural requirements for simultaneously contested claims, such as a claim for apportionment. See 38 C.F.R. §§ 19.100, 19.101, and 19.102. In this case, the Board finds substantial compliance with the applicable contested claims procedures as it pertains to the appellant. The decisional documents were directly addressed and sent to the appellant, including notice of the evidence and contentions submitted by the Veteran. In November 2011, the Board remanded this case to afford the appellant an opportunity to testify before the Board to correct a prior procedural error. She was offered an opportunity for an additional hearing with another VLJ who would be part of the panel deciding this case, but declined. The Board further concludes that all known and available records relevant to the issue on appeal have been obtained and associated with the claims file. The notice documents provided to the appellant requested proof of her marriage to the Veteran. A July 2008 RO letter informed the appellant that they were unable to establish a relationship between herself and the Veteran. A May 2009 Statement of the Case informed the appellant that the RO determined that the marital relationship had been terminated in 1974. The appellant has had ample opportunity to address this issue. In Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the appellant testified before the Board in February 2012 to being married to the Veteran for the time period from October 17, 2007 to August [redacted], 2009 and that, during that time period, she had great financial need. At that time, VLJ Chiappetta sought additional information on these issues that had been identified in RO decisional documents. As there was no opportunity to review the claims folder in its entirety, or research the full extent of legal issues involved, the Board was unaware of any additional evidence or information necessary to fully adjudicate the case. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2). The Veteran and his representative did not identify any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, VLJ Chiappetta complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that the Board can adjudicate the claim based on the current record. In summary, the Board concludes that the appellant is not prejudiced by a decision on the claim at this time. ORDER The claim of entitlement to apportionment of the Veteran's VA benefits for the time period from October 17, 2007 to August [redacted], 2009 is denied. ___________________________ ___________________________ DENNIS F. CHIAPPETTA L. M. BARNARD Veterans Law Judge Acting Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals _________________________________ D.C. SPICKLER Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs