Citation Nr: 1333505 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-45 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an apportionment of the Veteran's service connected disability compensation benefits. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, K.M. ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to March 1980. The appellant is the Veteran's former spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in March 2010; a statement of the case was issued in September 2010; and a substantive appeal was received in October 2010. The appellant presented testimony at a Board hearing in August 2011. A transcript of the hearing is associated with the Veteran's claims folder. FINDING OF FACT The appellant and the Veteran were divorced effective February [redacted], 2006 and have not since been remarried to each other. CONCLUSION OF LAW The criteria for eligibility for apportionment of the Veteran's disability compensation benefits have not been met. 38 U.S.C.A. § 5307 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.50, 3.450, 3.451, 3.452 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"). The matter of the appellant's legal status as a spouse for purpose of receipt of VA benefits is determined by application of relevant law. Where a claim may be resolved on the governing law, and not with regard to factual background, it has been held that the VCAA is inapplicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); DelaCruz v. Principi, 15 Vet. App. 143 (2002). See also VAOPGCPREC 2-2004 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). The claim for apportionment of benefits falls within the above criteria. Moreover, the VCAA does not apply to claims filed under Chapter 53 of Title 38, United States Code, which pertains to payment and disbursement of benefits once duly awarded. Rather, the VCAA duties attach under a claim filed pursuant to Chapter 51 seeking benefits entitlement. See e.g., Sims v. Nicholson, 19 Vet. App. 453, 456 (2006) (holding that the VCAA does not apply to claims for restoration of competency as the applicant "is not seeking benefits under Chapter 51, but, rather, is seeking a decision regarding how his benefits will be distributed under Chapter 55"). Therefore, there existed no duty under the VCAA to provide comprehensive notice and assistance to the appellant in regard to the development of the instant claim. Apportionment A Veteran's benefits may be apportioned if the 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). VA regulations provide for two types of apportionment. 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 the Veteran is not residing with his spouse or children, and the 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). The second type of apportionment 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 the 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. 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 dependents and the apportionment claimants. The amount apportioned should generally be consistent with the total number of dependents involved. Ordinarily, apportionment of more than 50 percent of the Veteran's benefits would constitute undue hardship on him or her, while apportionment of less than 20 percent of his or her benefits would not provide a reasonable amount for any apportionee. 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). Both of the above types of apportionments (either "general" or "special") are payable to a spouse or dependent. 38 U.S.C.A. § 5307(a)(2) (West 2002); 38 C.F.R. §§ 3.450. Analysis The evidence reflects that the appellant was divorced from the Veteran in February 2006. The 21st Judicial Circuit (St. Louis County) Court found that, as part of the marital settlement agreement, the Veteran was to pay $2000 to the appellant each month, for a period of 10 years. The appellant testified that she has never received any of the money due to her. Again, apportionment is a mechanism by which a portion of a Veteran's benefits, either pension or compensation, may be paid directly to his or her dependents. Key to basic eligibility for apportionment is a dependent relationship. VA recognizes a spouse, a surviving spouse, children, or parents as dependents eligible for apportionment. 38 C.F.R. §§ 3.450, 3.452. Upon a divorce from a Veteran, the ex-spouse loses her status as a Veteran's spouse, including any potential entitlement to an apportionment of his VA disability compensation, effective from the date of their divorce. See 38 U.S.C.A. § 101(31); 38 C.F.R. §§ 3.1(j), 3.50. A divorce severs the dependent relationship. The Board acknowledges that, according to the divorce settlement, the appellant is entitled to $2,000 per month from the Veteran. Furthermore, the Board is sympathetic to the fact that the Veteran has not paid her what she is apparently owed. However, the Board is without authority to grant equitable relief; rather, the Board is constrained to follow the specific provisions of law that govern the circumstances of this case and that are within the jurisdiction and authority of the Board to review. See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 390, 425 (1994). By law, she is not eligible for the remedy she seeks, as apportionment is not due ex-wives. Only current spouses may benefit from apportionment. Apportionment is possible only to provide support for the dependents of a Veteran. The February 2006 divorce severed the dependent relationship between the Veteran and the appellant, and she is accordingly not eligible for apportionment. While the Board is sympathetic to the fact that the appellant appears to have an equitable claim to monies owed her, there can be no remedy in this forum. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an apportionment of the Veteran's service connected disability compensation benefits is denied ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs