Citation Nr: 1325668 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 09-22 298 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUE Entitlement to apportionment of the Veteran's VA disability compensation payments for support of two children in the custody of the appellant. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from June 1992 to January 1994. The appellant is E.J, is the mother of two of the Veteran's children C.S, Jr. and K.S. She is unrepresented in this matter and the Veteran is represented by the service organization noted above. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an apportionment decision in February 2009 that denied an apportionment of the Veteran's VA disability benefits for C.S, Jr. and K.S. In July 2009, the appellant requested a hearing before a Veterans Law Judge; however, she withdrew her request in May 2010. FINDINGS OF FACT 1. The appellant is the mother and custodial parent of C.S, Jr. and K.S. 2. The Veteran is the biological father of C.S, Jr. and K.S. 3. The Veteran has failed to reasonably discharge his responsibility for the support of these two children. 4. A showing of financial hardship on the part of the appellant is not necessary in awarding a general apportionment. CONCLUSION OF LAW The criteria for a general apportionment of the Veteran's disability compensation payments on behalf of his minor children C.S, Jr. and K.S prior to their eighteenth birthdays have 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 Duties to Notify and Assist 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 notified both parties in February 2009 of the action taken in the contested claim, the time limit for initiating an appeal, and rights to a hearing and representation. All interested parties were also provided with a statement of the case (SOC) and a supplemental SOC (SSOC) that followed receipt of the appellant's substantive appeal. VA has also obtained financial information from both parties. While the appellant initially reported not being in receipt of any source of income, she was contacted in January 2009 for clarification and she reported receiving a monthly income of $2,000. However, in her March 2009 notice of disagreement (NOD) she stated her income was not $2,000 per month and failed to disclose her true income. 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. Legal Criteria and Analysis 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). 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). As noted, the procedural requirements have been met. The appellant contends she is entitled to an apportionment of the Veteran's VA disability compensation benefits on behalf of their minor children. Even though C.S, Jr. and K.S are no longer minors, these children were under the age of 18 when the appellant's claim was received in August 2008, having been born in 1992 and 1995. In the present case, the Veteran was ordered to pay child support in an amount to be determined by the Court. There is no evidence that the Veteran has faithfully provided support or financial assistance to his two children. An October 2006 Order and Judgment from the Arkansas Office of Child Support Enforcement shows that the amount of child support payment he was ordered to pay and shows that he was in arrears in the amount of $5,498.58 as of that month. The appellant submitted the history of child support payment from October 2006 to June 2009; these payments are shown to be erratic over the years. A January 2009 notice of direct deposit shows the Veteran made a payment of $55, but he was shown to be in arrears in the amount of $6,625.12 as of the previous month. A June 2009 notice of direct deposit shows a payment of $55 was made, but was also shown to be in arrears of 7,285.12 as of the previous month. In response to the appellant's claim, the Veteran submitted statement in November 2008 that stated he was already making weekly child support payment and he did not want deductions taken from his VA benefits. He added that he met their other needs such as haircuts, food, clothing, uniforms, and whatever else was needed including participating in fatherly activities. He also submitted a pay stub from October 2006 that shows $135 dollars were garnished from his weekly wages. The Veteran's assertions regarding his child support payments are credible to the extent that the records show he has made some payments from October 2006 to June 2009. However, he is not shown to reasonably discharging his duty to the support of his children due to the lack of consistent payment and increased arrearages that have accrued. The Veteran submitted an employment pay stub that shows $135 were garnished from his weekly wages, but the record does not indicate these funds were for the support of the two children C.S, Jr. and K.S. The child support payment records submitted by the appellant show that no payment was made in the amount of $135 in the week of October 2006 that relates to the pay stub. In fact, none of the child support payments show payments in the amount of $135. Therefore, it is reasonable to conclude that the garnishment was not for the benefit of C.S. Jr, and K.S. Despite the Veteran's assertions that he made his child support payments, the records indicate he was not making regular payments and, in fact, appears to have been inconsistent with his payments. In this regard, he was shown to be in arrears of approximately $5,500 in October 2006, $6,600 in January 2006, and $7,300 in June 2009. The fact that these records showed his arrears were increasing over the years rather than decreasing strongly suggests that he has not been meeting his financial obligations in the support of his children. It is not necessary for the claimant to establish the existence of hardship in order to obtain a general apportionment under 38 C.F.R. § 3.450. See Hall v. Brown, 5 Vet. App. 294 (1993). In her substantive appeal, the appellant asserts that the Veteran does not contribute additional support by providing clothes, food, haircuts, etc., to the children and that that he stated he would discontinue payment once a final decision is made. Given the Veteran's child support payment history, the Board finds that apportionment of benefits on behalf of C.S., Jr. and K.S, is warranted. The Board has considered whether apportionment of the Veteran's benefits may result in undue hardship to him. Regardless of whether the Veteran is reasonably discharging his responsibility for his children's support, apportionment may not be awarded if it results in undue hardship to the Veteran. 38 C.F.R. § 3.451(2012). In the present case, the Veteran has a total monthly income of $3,1,41 with $641 stemming from his monthly VA benefits award as of February 2009. After expenses, his net income was $1,195.00 per month, with liquid assets in the amount of $3,000.00. There is no evidence of record to suggest that the Veteran would suffer an undue hardship in apportioning these additional benefits to for his minor children. In June 2013, the Veteran's representative asserts that the amount of garnishment already taken from the Veteran's pay makes apportionment inappropriate since there is more income available for garnishment. It is further noted that Arkansas Statute factors VA disability in income even though it cannot be directly attached and that the Arkansas child support rules should be consulted. There is nothing in VA laws or regulations that require consideration of local State rules in the apportionment of VA benefits. The fact that the Veteran's employment wages are sufficient to cover additional garnishment of wages is a matter outside the scope of VA's control and authority. However, VA can and will consider apportionment of VA disability benefits it awards to a Veteran. Since the Veteran's children do not reside with him, and since he does not otherwise reasonably discharge his responsibility for the children's support, the Board finds apportionment of the Veteran's VA disability compensation benefits on behalf of his minor children is warranted. The claim is granted in this regard. ORDER Apportionment of the Veteran's VA benefits to E.J on behalf of his minor children C.S, Jr. and K.S prior to their eighteenth birthdays is granted. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs