Citation Nr: 1333492 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-13 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES Entitlement of the appellant to a higher apportionment of the Veteran's compensation benefits on behalf of the Veteran's children B.S. and T.S. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran had active service from May 1992 to May 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision of a Department of Veterans Affairs (VA), Regional Office (RO), that denied entitlement to the appellant's claim for increased apportionment of the Veteran's compensation benefits. In February 2010, the appellant filed a notice of disagreement, a Statement of the Case was issued in March 2010, and a substantive appeal was received in March 2010. In a January 2013 rating decision, the RO granted entitlement to an increased apportionment in the amount of $99.00 due to the Veteran's child B.S. attending school at an approved institution. The apportionment will remain in effect until May 2017, which corresponds to the period she will no longer be attending school. To date, neither the appellant nor the Veteran have filed a notice of disagreement with this decision. The issue of propriety of the award of a higher apportionment of the Veteran's compensation benefits on behalf of the Veteran's child B.S. effective May 1, 2012, is addressed in the August 2013 brief of the Veteran's representative, but this issue is not in appellate status and is not the subject of this decision. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with this claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT A higher apportionment of the Veteran's VA compensation for the Veteran's children B.S. and T.S. would cause the Veteran undue hardship CONCLUSION OF LAW The criteria for an increased apportionment of the Veteran's VA compensation benefits on behalf of the Veteran's children B.S. and T.S. have not been met. 38 U.S.C.A. § 5307(a) (2) (West 2002); 38 C.F.R. §§ 3.450, 3.451 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). This made several amendments to the law governing certain VA claims, to include redefining VA's duty to assist and notification obligations. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). However, it does not appear that these changes are applicable to claims such as the one decided herein. Cf. Barger v. Principi, 16 Vet. App. 132 (2002). In Barger, the United States Court of Appeals for Veterans Claims (Court) held that the VCAA, with its expanded duties, is not applicable to cases involving the waiver of recovery of overpayment claims, pointing out that the statute at issue in such cases was not found in Title 38, United States Code, Chapter 51 (i.e., the laws changed by VCAA). Similarly, the statute at issue in this matter is not found in Chapter 51 (rather, in Chapter 53). In addition, the Board notes that the VCAA, does not apply to decisions regarding how benefits are paid. Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). An apportionment decision involves deciding how existing benefits are to be paid; thus, under Sims, the VCAA is not applicable to this claim and will not be further addressed. The Board also finds that the contested claims procedures codified at 38 U.S.C.A. § 7105A(b) and 38 C.F.R. §§ 19.100 through 19.102 and 20.500 through 20.504 have been substantially complied with. That is, the RO has provided both the appellant and the Veteran with notice of the action taken with respect to the claim. They have both been provided with notice of the Decision to deny an increased apportionment to the appellant on behalf of B.S. and T.S. The appellant was provided the opportunity to present testimony during a RO or Board hearing but chose not to do so. The contested claims procedures have been substantially complied with. Criteria & Analysis Generally, all or any part of a veteran's compensation may be apportioned on behalf of a spouse and children if the veteran is not residing with the spouse and children, and the veteran is not reasonably discharging his or her responsibility for the spouse's and/or the children's support. See 38 U.S.C.A. § 5307(a); 38 C.F.R. § 3.450(a). For cases in which hardship is shown to exist, compensation may be specially apportioned between the veteran and his dependents on the basis of the facts in 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 of those dependents on whose behalf the apportionment is claimed, and the special needs of the veteran, his dependents and the apportionment claimants. Ordinarily, apportionment of more than 50 percent of the 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. The special apportionment was 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. See, e. g., Vet. Reg. No. 6(c), Instruction No. 2, VI (Oct. 1934); cf. Vet. Reg. No. 6(c), 4 (June 1934). For the purpose of determining entitlement benefits, the term "child of the veteran" means an unmarried person who is a legitimate child who is under the age of 18 years, or who, before reaching the age of 18 years, became permanently incapable of self-support, or who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4)(A); 38 C.F.R. § 3.57. In this case, B.S. (DOB April 13, 1994) and T.S. (DOB September 30, 1998) are the children of the Veteran. B.S. turned 18 on April 13, 2012, but this decision covers the period from July 23, 2009, when B.S. was still a minor. T.S. is still a minor child. The appellant filed a claim for an increased apportionment of the Veteran's compensation benefits on behalf of their children on July 23, 2009; at that time the appellant was in receipt of $77 in apportionment of the Veteran's compensation benefits on behalf of the minor children. In January 2010, the appellant completed a VA Form 21-0788, Information Regarding Apportionment of Beneficiary's Award, and reported monthly income of $2,108.80 in gross wages and $77.00 in apportionment. She reported her monthly expenses totaled approximately $10,540 for rent, food, utilities, telephone, clothing, school expenses, car expenses, and dental/orthodontia expenses. She did not specify any specific expenses strictly for B.S. and T.S., although in an accompanying statement she indicated that the dental/orthodontia expenses were for the children. In January 2010, the Veteran completed a VA Form 21-0788, Information Regarding Apportionment of Beneficiary's Award, and reported $100 of Supplemental Security Income (SSI), $597 VA compensation benefits, and $120 for blood/plasma. He reported his monthly expenses totaled approximately $815 for rent, food, utilities, telephone, and smokes. The VA Compensation Rate Table, effective December 1, 2009, reflects that based on his 40 percent combined disability rating the Veteran was in receipt of $674 in VA compensation less the $77 apportionment to the appellant, thus amounting to $597. At that time, he was being paid for three dependents as he had not reported to VA that he and the appellant had divorced in 1996. Based on this information, the RO denied the appellant's claim for an increased apportionment, keeping the apportionment at $77. In a 'Special Apportionment Decision' it was determined that the appellant's net income after expenses exceeds the Veteran's net income by $618 from the reported expenses and that granting an increase would cause an undue hardship on the Veteran. It was noted that the additional amount the Veteran receives for two children is already apportioned to the appellant. In her notice of disagreement, the appellant stated that she has received little financial and medical support from the Veteran who refuses to work. She indicates that she struggles to pay the bills and support the children. In a subsequent March 2010 statement, the appellant submitted a copy of an orthodontia bill and requested that the apportionment be increased to $150 per month. The parties' Divorce Decree dated in December 1996 reflects that the Veteran was to pay $162.00 in child support per month. A print out from the state court reflects that there have been periods of garnishment, direct payment, and contempt proceedings through April 2001. The Board has considered the evidence of record and the contentions of the appellant, but finds that the evidence of record does not support an increase in the amount of apportionment to the appellant on the behalf of the Veteran's children B.S. and T.S. According to the appellant, while she reports $2,108 in income plus the $77 apportionment, her expenses exceed her income. The Board notes that a portion of the reported expenses also pertain to the appellant, who is not eligible for apportionment. While expenses such as rent, utilities, food, medical expenses, and car do pertain to B.S. and T.S., such expenses are also allotted to the appellant, thus, in fact the total expenses reported would be reduced by her share. In any event, it is clear that the appellant's share of expenses for B.S. and T.S. appear to exceed her monthly income. As detailed, the Veteran has reported just over $800 in income (SSI, VA compensation, blood plasma) and just over $800 in monthly expenses. His VA compensation reported includes the $77 apportionment awarded to the appellant. The Veteran is just able to meet his expenses with his reported income, or his reported expenses minimally exceed his reported income. At the time the January 2010 decision was issued, the Veteran was being paid for three dependents - B.S., T.S., and the appellant, as the Veteran had not reported his divorce in 1996. Per a June 2010 VA decision, it was proposed that the appellant be removed from his award, effective July 1, 2002. In an October 2010 VA decision, the appellant was removed from his award, effective July 1, 2002, and his compensation was reduced due to his failure to report that the appellant was no longer a dependent and to recoup any overpayment by VA. The appellant's apportionment remained the same at $77. At the time the appellant filed for an increase, the apportionment of $77 constituted nine percent of the Veteran's reported income and 11 percent of his VA compensation. Per the October 2010 decision to remove the appellant as his dependent, he was being paid at a compensation rate with two dependent children which amounted to $611 less $77 for apportionment which was 12 percent of his VA compensation. This number does not even contemplate VA's reduction of the Veteran's monthly payments effective July 1, 2002, in light of the overpayment. Based on a review of the financial information of record from the appellant, it is clear that she has demonstrated a financial need for an increased apportionment on behalf of B.S. and T.S. The Board, however, has balanced such need with the reported income and expenses of the Veteran, and finds that an increased apportionment from his VA benefits would result in undue financial hardship for him, seriously undermining his ability to afford the basic necessities of life. As discussed in detail, he barely meets his monthly expenses based on his reported income, which consists of VA compensation, SSI, and blood plasma. While the appellant may believe that the Veteran has not adequately supported the minor children, the Board notes that the Veteran may also be obligated through the state court to support B.S. and T.S. It is not clear whether the Veteran pays his child support obligations but the appellant may take action in the state court to enforce any such order. The role of VA is to make a determination as to whether an increased apportionment would constitute a financial hardship to both the appellant and the Veteran, based on the reported income and expenses. In light of the Veteran's income and expenses, the Board has determined that an increased apportionment is not warranted as such would constitute undue financial hardship on the Veteran. Thus, while sympathetic to the appellant's contentions, the Board finds that the appellant's entitlement to an increase in the apportionment of the Veteran's compensation benefits has not been established. Accordingly, the Board finds that an increased apportionment of the Veteran's compensation benefits for the children in the appellant's custody is not warranted. 38 U.S.C.A. § 5307; 38 C.F.R. §§ 3.450, 3.451. ORDER An increased apportionment of the Veteran's compensation benefits on behalf of his children B.S. and T.S. is denied. ______________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs