Citation Nr: 1328703 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 07-34 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Whether an apportionment of the Veteran's non-service-connected pension benefits in the amount of $273 per month, on behalf of his son, S.S., was proper. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to August 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, that awarded an apportionment of the Veteran's non-service-connected pension benefits on behalf of his son, S.S., in amount of $273 per month, effective October 1, 2005. The Veteran opposes the award in its entirety. This case was previously before the Board in September 2009, when it was remanded to the RO for additional development. After taken further action, the RO confirmed the prior award and returned the case to the Board. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's appeal. The electronic file contains additional evidence, which the RO and Board have reviewed. FINDINGS OF FACT 1. The Veteran and his ex-spouse were married in July 1977. 2. The Veteran's son, S.S., was born in September 1980 and reached the age of 18 in September 1998. 3. In December 2000, VA awarded the Veteran non-service-connected pension benefits. 4. In March 2001, VA determined that S.S. had become permanently incapable of self support prior to the age of 18; as a result of that action, S.S. was added to the Veteran's pension award as a dependent. 5. The Veteran and his ex-spouse were divorced in October 2003. 6. In September 2005, the Veteran's ex-spouse filed a claim for apportionment of the Veteran's non-service-connected pension benefits on behalf of their son, S.S. 7. At the time of the September 2005 claim for apportionment, the Veteran was receiving additional pension benefits in the amount of $273 per month for S.S. as a dependent. 8. S.S. has not resided with the Veteran since at least September 2005, and the Veteran has not been reasonably discharging his responsibility to support S.S. since that time. 9. The apportionment of $273 per month, equal to the amount which the Veteran was receiving from VA on the basis of S.S.'s dependency in 2005, does not, as a matter of law, cause hardship to the Veteran. CONCLUSION OF LAW The apportionment of the Veteran's non-service-connected pension benefits in the amount of $273 per month, on behalf of his son, S.S., was proper. 38 U.S.C.A. § 5307 (West 2002); 38 C.F.R. §§ 3.450, 3.451 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks to have the apportionment in question discontinued. His representative has advanced argument to the effect that the apportionment is void or invalid because the Veteran's ex-spouse had no standing to file the underlying claim. It is also argued, in the alternative, that the award results in a hardship to the Veteran. I. Preliminary Matters A. The Veterans Claims Assistance Act of 2000 On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)). The VCAA imposes obligations on VA in terms of its duty to notify and assist claimants. However, the VCAA does not apply to decisions regarding how benefits are to be distributed. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). Nor does the VCAA generally apply to matters arising under Chapter 53, Title 38, of the United States Code. See, e.g., Lueras v. Principi, 18 Vet. App. 435 (2004); Barger v. Principi, 16 Vet. App. 132, 138 (2002). Inasmuch as a claim for apportionment arises under Chapter 53, and involves a decision with respect to how benefits are distributed, the provisions of the VCAA are inapplicable. B. Other Due Process Considerations 1. Contested Claims Procedures Claims for apportionment are considered "simultaneously contested claims" because they involve questions pertaining to the allocation of available benefits between two or more parties. The law includes special requirements for such claims. See 38 U.S.C.A. § 7105A (West 2002); 38 C.F.R. § 19.100, 19.101, 19.102 (2012). See also 38 C.F.R. §§ 20.500-20.504 (2012). Under applicable regulations, all interested parties are to 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 initiation of an appeal, as well as hearing and representation rights. 38 C.F.R. § 19.100 (2012). In addition, upon the filing of a notice of disagreement (NOD) in a simultaneously contested claim, all interested parties and their representatives are to be furnished a copy of the statement of the case (SOC). 38 C.F.R. § 19.101 (2012). Further, when a substantive appeal is filed in a simultaneously contested claim, the content of the substantive appeal is to be furnished to the other contesting parties, to the extent that it contains information directly affecting the payment or potential payment of the benefit which is the subject of the contested claim. 38 C.F.R. § 19.102 (2012). In the present case, the Board finds that the aforementioned requirements have been satisfied. Both the Veteran and his ex-spouse (on behalf of their son, S.S.) were notified of the RO's November 2006 decision pertaining to apportionment; the right and time limit for initiating an appeal; and their hearing and representation rights. In addition, the record shows that the RO, in December 2011-in response to directives contained in the Board's September 2009 remand-provided the Veteran's ex-spouse with copies of the Veteran's December 2006 NOD, the SOC issued to the Veteran in September 2007, and his September 2007 substantive appeal. No further corrective action is required. 2. Remand Compliance When this case was remanded in September 2009, the Board requested that the RO (1) provide the Veteran's ex-spouse with copies of the September 2007 SOC issued to the Veteran, and the content of the Veteran's NOD and substantive appeal; (2) obtain the parties' divorce order and custody record indicating who currently had custody of their child, S.S.; and (3) ask the Veteran and his ex-spouse to submit current financial status reports. As noted above, the record reflects that the RO provided the Veteran's ex-spouse with copies of the SOC, as well as the Veteran's NOD and substantive appeal, in December 2011. That same month, the RO also asked both the Veteran and his ex-spouse to submit a copy of their divorce order and custody record, and current financial status reports. Neither party produced a copy of any custody record pertaining to S.S. in response to the RO's request. However, the Veteran's ex-spouse did provide a copy of the divorce order and a current financial status report. She also provided a statement, through her attorney, averring, in pertinent part, that S.S. was diagnosed with cerebral palsy and mental retardation at seven months of age; that he was diagnosed with autism at age 14; and that he had an IQ of a person five to seven years of age. She also averred that that the Veteran had not had contact with S.S. since the summer of 2003, and failed to contribute any financial support for S.S. whatsoever; that she maintained primary, full custody of S.S.; and that she had at all times relevant maintained and cared for the day-to-day needs of S.S., and continued to do so. The only additional document provided by the Veteran was a VA Form 5655 (Financial Status Report) containing information with respect to income, but not expenses. He wrote on the bottom, "I am not required to fill out this form!" It appears from the record that the development sought has been completed to the extent possible. The RO has taken action to rectify the deficiencies in procedure identified in the Board's remand, as noted above, and the parties have apparently furnished all of the evidence they can, or are willing to, provide. Thus, it appears that further efforts to obtain additional evidence would be futile. Under the circumstances, no further development action is necessary. See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that substantial, and not strict, compliance with the terms of a Board remand is all that is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). 3. Standing As noted above, the Veteran and his representative have advanced argument to the effect that the apportionment here at issue is void or invalid because the Veteran's ex-spouse had no standing to file the underlying claim. They appear to be arguing that, unless S.S. has been adjudicated incompetent, and the Veteran's ex-spouse formally appointed his legal guardian, his ex-spouse has no authority to request an apportionment on their son's behalf. The Board finds these arguments unpersuasive. VA regulations permit the filing of a claim and/or appeal on another's behalf if the claimant is unable to do so himself. See, e.g., 38 C.F.R. §§ 3.155(a), 20.301(b) (2012). Although the record on appeal does not contain a legal document expressly adjudicating S.S. incompetent, the evidence shows that VA, in March 2001, determined that S.S. had become permanently incapable of self support prior to the age of 18 (i.e., that he is a "helpless child") as a result of left hemiparetic cerebral palsy and developmental delay, with symptoms characteristic of autistic disorder. In addition, as noted above, the Veteran's ex-spouse has averred, through her attorney, that S.S. has an IQ of a person five to seven years of age, and that she has maintained primary, full custody of S.S. at all times relevant and cares for his daily needs. The Veteran has not provided any evidence to contradict his ex-spouse's assertions, and the Board finds no reason on the current record to question her credibility. Under the circumstances, the Board finds no legal barrier that would render the claim here in question void or invalid, as filed. To the extent that the Veteran is questioning whether his ex-spouse is a responsible payee of S.S.'s benefits, that question falls beyond the scope of the current appeal and cannot be considered presently. 4. The Need for Evidence of S.S.'s Personal Income and Expenses The Veteran and his representative have also advanced argument to the effect that additional evidence must be procured before the Veteran's appeal can be properly adjudicated. More specifically, they maintain, in essence, that the appeal cannot be properly considered without evidence of S.S.'s (rather than his mother's) personal income and expenses. The Board disagrees. As discussed in further detail, below, the evidence in this case shows that the requirements for a general apportionment under 38 C.F.R. § 3.450(a)(1)(ii) have been satisfied. Under that regulation, it is not necessary for the apportionee to establish the existence of hardship. As such, there is no need to obtain information with respect to S.S.'s personal income and expenses. II. The Merits of the Veteran's Appeal A veteran receiving pension is entitled to additional benefits for his child if his child is in his custody or if the veteran is reasonably contributing to his support. 38 U.S.C.A. § 1521(c) (West 2002 & Supp. 2013). Under 38 U.S.C.A. § 5307 (West 2002), if a veteran's child is not in his custody, all or any part of the pension payable on account of the veteran may be apportioned as may be prescribed by the Secretary. A "child" is defined, in pertinent part, as an unmarried person who (i) is under the age of 18 years; (ii) before the age of 18 years, became permanently incapable of self support; or (iii) after attaining the age of 18 years and until completion of education or training (but not after attaining the age of 23 years) is pursuing a course of instruction at an educational institution approved by VA. 38 U.S.C.A. § 101(4)(A) (West Supp. 2013); 38 C.F.R. § 3.57(a) (2012). 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 (2012). More specifically, 38 C.F.R. § 3.450(a)(1)(ii) provides that an apportionment may be paid if the Veteran is not residing with his or her spouse, or if the Veteran's children are not residing with the Veteran and the Veteran is not reasonably discharging his or her responsibility for the spouse's or children'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. That regulation provides that, without regard to any other provision regarding apportionment, where hardship is shown to exist, compensation benefits payable 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 on whose behalf the apportionment is claimed, and the special needs of the Veteran, his or her dependents, and the apportionment claimants. Ordinarily, a special apportionment of more than 50 percent of a veteran's benefits would constitute undue hardship on him, while apportionment of less than 20 percent of his benefits would not provide a reasonable amount for any apportionee. See 38 C.F.R. § 3.451 (2012). The special apportionment provisions were apparently 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. The "benefit-of-the-doubt" rule does not apply in cases involving simultaneously contested claims (such as this case) because the benefit of the doubt cannot be given to both an appellant and a veteran. See Elias v. Brown, 10 Vet. App. 259, 263 (1997). In the present case, the evidence shows that the Veteran and his ex-spouse were married in July 1977. The Veteran's son, S.S., was born in September 1980 and reached the age of 18 in September 1998. In December 2000, VA awarded the Veteran non-service-connected pension benefits. A birth certificate of record shows that the Veteran's is S.S.'s biological father. In March 2001, VA determined that S.S. had become permanently incapable of self support prior to the age of 18. As a result of that action, S.S. was added to the Veteran's pension award as a dependent. Thereafter, the Veteran and his ex-spouse were divorced in October 2003. In September 2005, the Veteran's ex-spouse filed a claim for apportionment of the Veteran's non-service-connected pension benefits on behalf of their son, S.S. At that time, the Veteran was receiving additional pension benefits in the amount of $273 per month for S.S. as a dependent. The appellant has advanced argument to the effect that S.S. has not resided with the Veteran since at least September 2005, and that the Veteran has not been reasonably discharging his responsibility to support S.S. since that time. Following review of the evidence, and the applicable laws and regulations, the Board finds that the apportionment of the Veteran's non-service-connected pension benefits on behalf of his son, S.S., was proper. There is no dispute that S.S. is the Veteran's "child," as that term is defined by applicable law. Moreover, the Veteran has not contested the appellant's assertions to the effect that S.S. has not resided with him since at least September 2005, and that he has not been reasonably discharging his responsibility to support S.S. since that time. Rather, he has sought to have the apportionment discontinued on other grounds (as discussed above). Under the circumstances, therefore, in light of the undisputed facts, the Board finds that the requirements for an apportionment under 38 C.F.R. § 3.450(a)(1)(ii) have been satisfied. Because the Board finds that the apportionment here is question is warranted under the provisions of 38 C.F.R. § 3.450, there is no need for S.S. (or his mother, on his behalf) to establish the existence of hardship. With respect to the Veteran's assertions of hardship, the Board observes that the apportionment of $273 per month is equal to the amount that the Veteran was receiving from VA on the basis of S.S.'s dependency in 2005. As noted previously, a veteran receiving pension is entitled to additional benefits for his child only if his child is in his custody or if the veteran is reasonably contributing to his support. See 38 U.S.C.A. § 1521(c) (West 2002 & Supp. 2013). Here, the evidence shows that neither of those conditions was being met. As such, the apportionment in the amount of $273 per month cannot, as a matter of law, cause undue hardship to the Veteran. The appeal is denied. ORDER The apportionment of the Veteran's non-service-connected pension benefits in the amount of $273 per month, on behalf of his son, S.S., was proper; the appeal is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs