Citation Nr: 1333614 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-30 528 ) 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 disability compensation benefits on behalf of his minor child. ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1993 to September 1996. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a decision issued by the RO denying the Appellant's claim for apportionment of the Veteran's disability benefits. The Veteran is represented by the Veterans of Foreign Wars of the United States. The Appellant is proceeding without representation. In March 2009 and December 2010, the Board remanded this case for additional development. The Appellant and the Veteran were requested to provide Financial Status Reports, a record of child support payments was received from the Missouri Department of Social Services from 2004 to 2009, and the RO indicated the amount of excess compensation paid for the addition of a dependent, such that the Board finds there has been substantial compliance with its previous remand directives. FINDINGS OF FACT 1. In January 2006, the Appellant filed a claim for an apportionment of the Veteran's VA compensation benefits on behalf of their daughter; at the time of the claim, the child's age was 5. 2. The record indicates that the Veteran has been paying the Appellant monthly child support of varied amounts since at least January 2006 through February 2013, with only three exceptions when no support was paid for the month. 3. The evidence demonstrates that the Veteran reasonably discharged his responsibility for the support of his daughter, who as a minor was in the custody of the Appellant. 4. The evidence shows that the Veteran already pays more than 50 percent of his income in child support, and that his expenses exceed his income, such that additional payment of a special apportionment to the Appellant on behalf of the Veteran's minor daughter would constitute a hardship on the Veteran. CONCLUSION OF LAW The criteria for an apportionment of the Veteran's VA compensation benefits to the Appellant on behalf of their daughter have not been met. 38 U.S.C.A. § 5307; 38 C.F.R. §§ 3.450, 3.451. REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. This appeal concerns a benefit provided under Chapter 53, Title 38, United States Code. The rules governing VA notice and assistance upon receipt of a claim for benefits, as outlined by the VCAA and in the provisions listed above, do not apply to claims for benefits provided under chapters other than Chapter 51. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). That is, the VCAA does not apply to decisions regarding how benefits are paid. An apportionment claim is, however, a "contested claim" and is subject to special procedural regulations. See 38 C.F.R. §§ 19.100, 19.101, 19.102 (2013). VA has provided each party with notices of the denial of the apportionment and provided each party with a copy of the statement of the case. As such, VA has advised each party of the applicable laws and regulations. Based on the present record, the Board finds that the VA has satisfied any applicable duties to notify and assist the parties. Apportionment VA law provides that if a Veteran's children are not in the Veteran's custody, all or any part of compensation or pension payable on account of the Veteran may be apportioned as may be prescribed by the Secretary. 38 U.S.C.A. § 5307. A child is defined as an unmarried person who is (i) 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 approved educational institution. 38 U.S.C.A. § 101(4)(A); 38 C.F.R. § 3.57(a). The allowance is generally discontinued when a dependent child turns 18, or when the child turns 23 if he or she is enrolled in school. 38 C.F.R. §§ 3.503, 3.667. It is not disputed that at the time of the Appellant's claim and during the course of the appeal, Amanda qualified as a "child of the Veteran." She was born on July 21, 2000. See 38 U.S.C.A. §§ 101(4)(A), 104(a); 38 C.F.R. § 3.57. VA regulations provide for two types of apportionments. A "general" apportionment may be paid if the Veteran's children are not residing with the Veteran, and the Veteran is not reasonably discharging his responsibility for the children's support. 38 C.F.R. § 3.450. 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). A "special" apportionment may be paid where hardship is shown to exist. In such cases, compensation may be 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 special needs of the Veteran, his dependents, and the apportionment claimants. 38 C.F.R. § 3.451. It is noted that, 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. Id. The "benefit-of-the-doubt" rule does not apply in 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). As background, the Board notes that the RO awarded the Veteran service connection for asthma and tinnitus and assigned 10 percent disability ratings, respectively, effective from September 9, 1996. In a December 1998 rating decision, the RO increased the Veteran's asthma disability rating to 30 percent, effective April 22, 1997. In August 2000, the Veteran submitted a completed Declaration of Status of Dependents (VA Form 21-686c). He declared that he had two dependents, his wife and child for purposes of calculating the amount of his disability compensation. In a November 2000 letter, the RO informed the Veteran that additional benefits were provided for his wife and child and that his VA compensation benefits would include an additional amount for his spouse and child. The Veteran and the Appellant were divorced on April [redacted], 2005. Consequently, she was removed from his VA disability benefit compensation calculation effective May 1, 2005. However, the Veteran continued to receive VA disability benefit compensation that included an additional amount for their child. Effective July 26, 2010, the Veteran's new wife was added as a dependent once again giving the Veteran two dependents. The Appellant essentially contends that apportionment of the Veteran's VA disability compensation benefits on behalf of his minor child is necessary because he is not providing consistent support in compliance with a court order issued in Missouri. The Appellant submitted a copy of an April 2005 Order from the Circuit Court of St. Louis, Missouri, ordering the Veteran to pay $907.00 per month for support of the minor child, effective from May 1, 2005. In May 2006 the Appellant reported that her total income was $1,507.00, while her expenses were $2,364.00, such that there was a difference of $857.00 monthly. The Appellant's August 2006 Notice of Disagreement included a document indicating that the Veteran was in arrears of his child support payment in an amount well over $2,000.00 as of August 2006. In January 2007, the Appellant submitted records from the Circuit Court of St. Louis, Missouri, indicating that the Veteran had made child support payments from January 13, 2006 to December 26, 2006, albeit less than the Court ordered $907.00. The Veteran objected to the Appellant's apportionment request. In a June 2006 statement, the Veteran's listed monthly expenses totaled $1,757.00, prior to paying support, or $3,514.00 including the court ordered child support and spousal maintenance. Comparatively, his listed monthly income totaled $1,021.00, such that there was a difference of $736.00 without considering the support owed, or $2,493.00. In July 2010, the Appellant also submitted copies of her tax return summaries, health insurance information and employment information. It showed that in 2009 her total income was $9,936.00, and in 2008 it was $12,821.00. It showed that in January 2010 she was beginning to be employed for 30 to 40 hours a week, at $7.25 an hour, such that her wages were between $217.00 and $290.00 weekly. In addition, it showed that the Appellant provided medical insurance for their daughter. A February 2010 Modification of Judgment shows that the Veteran's child support payments on behalf of their daughter are for $907.00 monthly from the date of apportionment claim through April 2009, and $313.00 monthly from May 2009 to the present. The Missouri Department of Social Services, Family Support Division records shows that over the lifetime of the support agreement, which began in October 2004, the Veteran paid a total of $48,085.91. During the same time period, he owed a total of $57,934.00, such that a balance of $9,848.09 was unpaid. From January 2006 to February 2013, he has paid a total of $25, 543.61, during which time he owed $35,373.00, for a balance of $9,829.39 that was unpaid. The record also shows that the Veteran failed to pay in a given month in just 3 of approximately 100 months during the lifetime of the agreement. As such, there is a strong indication that the Veteran has consistently attempted to comply with the court order. As such, the Veteran is "reasonably" discharging his responsibilities for his child's support, such that criteria for a general apportionment are not met. In addition, the Veteran's additional amount received per month on behalf of his dependent daughter, was as follows: Year Total ($) for40% disability Total for dependent ($/month) Total with dependent 50% of Total Payment 2006 501.00 37.00 538.00 269.00 2007 512.00 38.00 550.00 275.00 2008 541.00 40.00 581.00 290.50 2009 541.00 40.00 581.00 290.50 2010 541.00 40.00 581.00 290.50 2011 560.00 41.00 601.00 300.50 2012 569.00 42.00 611.00 305.50 The support calculations show that, with the exception of the three months no child support was provided and September and October 2012, the Veteran is providing the dependent on a monthly basis more than he received as a result of his daughter's dependent status. On average, the amount he has provided far exceeds the amount he has received for claiming her as a dependent. In fact, his support payments exceeded the entire amount that the Veteran received due to his service-connected disabilities approximately 80 percent of the time on appeal (only 18 out of 86 payments were less than 50 percent of his total disability payment received). In sum, in spite of the varying amounts of income, expenses, and support payments made, the Veteran made the vast majority of payments, and these were mainly greater than 50 percent of the disability income he received. The Board finds that the Veteran reasonably discharged his responsibility for the support of his daughter. The Board notes that ordinarily apportionment of more than 50 percent of his payments would constitute undue hardship. Although the Board is sympathetic to the Appellant's financial difficulties, in light of the above, there is no basis in which to award an apportionment of the Veteran's VA disability compensation benefits to the Appellant on behalf of the Veteran's daughter. 38 U.S.C.A. § 5307; 38 C.F.R. §§ 3.450, 3.451. ORDER The request for an apportionment of the Veteran's VA compensation benefits is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs