Citation Nr: 1325693 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 10-43 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to recognition as the Veteran's spouse for the purpose of receiving apportionment benefits. WITNESSES AT HEARING ON APPEAL The Appellant and R.E. ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to November 1970. The Appellant is the Veteranb's estranged spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of an administrative decision of May 2010 of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2011, the Appellant appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. FINDINGS OF FACT 1. The Veteran and the appellant were married in January 1973. 2. The Veteran and the appellant remain married to this day, but live separately from one another. CONCLUSION OF LAW The appellant meets the criteria to be recognized as the Veteran's spouse for the purpose of receiving apportionment benefits. 38 U.S.C.A. §§ 101(c), 5307(a)(West 2002); 38 C.F.R. §§ 3.1(j), 3.50, 3.450, 3.452 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. In this case, the Board is taking an action that is entirely favorable to the appellant. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria A veteran's benefits may be apportioned if a veteran 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). The term "spouse" means a person of the opposite sex who is a wife or husband where marriage to the 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). Under 38 C.F.R. § 3.1(j), the term "marriage" means a marriage valid under the law of the place where the parties resided at the time of marriage or the law of the place where the parties resided when the rights to benefits accrued. 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. 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; see also 38 C.F.R. §§ 20.500-20.504. 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. Facts A License and Certificate for Marriage submitted by the appellant reflects that she and the Veteran were married on January 1, 1973. A January 2001 Improved Pension Eligibility Verification Report submitted by the Veteran indicated that he is married but not living with his spouse. He noted that he had not contributed any amount to his spouse during the previous year. In her October 2008 claim, the appellant stated that she did not live with the Veteran and that he did not help her financially. In a May 2010 decision, the RO denied the appellant's claim for apportionment. It noted that the appellant had not submitted a copy of her marriage certificate to the Veteran, and that the Veteran had not previously stated that he was married. Accordingly, the RO concluded that the appellant failed to establish a marital relationship, and apportionment benefits were thus not warranted. In her June 2010 notice of disagreement, the appellant stated that she and the Veteran remained married, but that she and her husband lived apart. She also supplied a copy of their marriage certificate. In her May 2011 hearing, the appellant and R.E. again explained that she remained married to the Veteran, but that they no longer lived together. The appellant also stated that the Veteran did not support her financially. Analysis For apportionment benefits to be granted, it must be first shown that the claimant remains married to the Veteran. All of the evidence in this case reflects that the appellant remains married to the Veteran, and that he is not providing her with any financial support. The appellant has supplied a copy of the couple's marriage certificate indicating that they were married in January 1973. The appellant has consistently stated that she remains married to the Veteran, a fact that was further supported by R.E. in her May 2011 hearing. Finally, in a January 2001 report, the Veteran stated that he remained married but was not living with his spouse. Given this evidence, recognition of the appellant as the Veteran's spouse for apportionment benefits purposes is warranted. This is the sole issue properly before the Board; a decision on whether the Veteran's benefits should be apportioned will be made by the RO. ORDER Recognition of the appellant as the Veteran's spouse for the purpose of receiving apportionment benefits is granted. ____________________________________________ George E. Guido, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs