Citation Nr: 1337470	
Decision Date: 11/18/13    Archive Date: 11/26/13

DOCKET NO.  09-50 715	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas


THE ISSUE

Entitlement to an apportionment of the Veteran's VA compensation benefits for the appellant.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Christopher Maynard, Counsel


INTRODUCTION

The Veteran had active service from July 1969 to September 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 decision by the RO which denied apportionment of the Veteran's VA compensation benefits.  A hearing before the undersigned was held at the RO in May 2013.  A transcript of that hearing has been associated with the Veteran's Virtual VA electronic records.  


FINDINGS OF FACT

1.  The appellant's claim for apportionment of the Veteran's VA benefits was received in January 2009.  

2.  The Veteran and appellant were married in January 1988, separated in 1991, and were divorced in May 2010.  

3.  The evidence does not show that hardship existed for the appellant or that the Veteran had any responsibility for the appellant's support from January 2009 to May 2010.  




CONCLUSION OF LAW

The criteria for an apportionment of the Veteran's disability benefits have not been met.  38 U.S.C.A. §§ 5107, 5307 (West 2002); 38 C.F.R. §§ 3.450, 3.451, 3.452, 3.458, 19.100, 19.101, 19.102 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the appellant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.156(a), 3.159, and 3.326(a) (2012).  The VCAA does not apply to decisions regarding the manner in which 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, the VCAA is not applicable to this claim and no further discussion of the duty to notify or assist is necessary.  

Nevertheless, the claim for an apportionment is a "contested claim," and is subject to the special procedural regulations set forth in 38 C.F.R. §§ 19.100, 19.101, and 19.102 (2013).  The applicable contested claims procedures were followed in this case.  The RO provided the parties, the appellant and the Veteran, with notices and determinations related to the contested claim, and advised both parties of the applicable law and regulations.  The Board notes that it is not clear if the Veteran received a copy of the VA Form 9 submitted by the appellant.  38 C.F.R. § 19;102 (2013).  However, correspondence to the Veteran reflects that he was informed of the essence of the appellant's argument.  


Factual Background & Analysis

Service connection was established for schizophrenic reaction by rating action in December 1971, and was initially rated 30 percent disabling.  The record showed that the Veteran was not married and had no dependents at the time of the award.  

At the time of receipt of the appellant's request for apportionment in January 2009, the Veteran's only service-connected disability, schizoaffective schizophrenia was rated 70 percent disabling; effective from May 1, 2003.  The Veteran was also in receipt of a total disability rating (TDIU); also effective from May 1, 2003.  

Following her request for apportionment, the appellant and the Veteran were each provided with VA Form 21-0788, Information Regarding Apportionment of Beneficiary's Award and requested to complete and return them to the RO.  The Veteran did not return a completed form.  In February 2009, the appellant indicated that she received $449 in Supplemental Security Income (SSI), but did not report any additional income or expenses.  In a letter received in February 2010, the appellant reported that she received $449 from SSI, $107 in food stamps and had a bus card, but did not indicate the value.  Her expenses included rent of $100 to 150 a month to her niece, and $52 for telephone service.  The appellant reported that she paid a water bill, but did not indicate the amount, and indicated that her sister helped her with clothing.  

In her substantive appeal, received in December 2009, the appellant requested a Travel Board hearing.  The Veteran and his representative appeared at a hearing at the RO before the undersigned in May 2013, however, the appellant did not attend.  The Veteran testified that he and the appellant were married in January 1988, that she left him on her own volition in 1991, and that he had not heard from her again until around 2006 or 2007.  Shortly thereafter, he was notified by VA that the appellant was seeking apportionment of his VA benefits.  The Veteran reported that they were divorced in May 2010, and provided a copy of the divorce decree.  

The record showed that the appellant and the Veteran were married in January 1988.  A Final Decree of Divorce from the District Court of Tarrant County, Texas showed that they were divorced on May 14, 2010 on the ground of insupportability, and that there were no children born of the marriage.  The Decree stipulated that neither party was responsible for the debts, charges, liabilities, and other obligations incurred by the other, or had a claim to any proceeds, accrued or unaccrued, flowing to the other from and after May 17, 1991.  

Initially, it should be noted that there is no legal entitlement to an apportionment following a divorce.  The validity of a divorce decree, regular on its face, will be questioned by VA only when such validity is put in issue by a party thereto or a person whose interest in a claim for VA benefits would be affected thereby.  38 C.F.R. § 3.206.  

Here, the record shows that the appellant and the Veteran were married in January 1988, that no children were born of the marriage, and that they were divorced in May 2010 on the ground of insupportability.  Thus, the appellant is not eligible for an apportionment after May 2010 as a matter of law.  See 38 U.S.C.A. § 101(31); 38 C.F.R. §§ 3.1(j), 3.50.  

Additionally, VA regulations provide that a veteran's benefits will not be apportioned until the estranged spouse of the veteran files a claim for an apportioned share.  38 C.F.R. § 3.458(g).  In this case, the appellant filed her claim for apportionment on January 8, 2009.  Therefore, based on the facts in this case, any apportioned share that the appellant might be entitled to receive would be limited to the period from January 8, 2009, to May 14, 2010.  

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 (2013).  More specifically, the law provides that all or any part of the veteran's VA compensation benefits 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 support.  38 U.S.C.A. § 5307 (West 2002); 38 C.F.R. §§ 3.450, 3.452.  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).  

In this regard, the Board notes that while the appellant alleged that the Veteran "carried" her as a dependent and that she was entitled to receive an apportionment of his VA benefits, the appellant was never recognized by VA as a dependent, nor did the Veteran ever receive additional VA compensation for an eligible dependent.  Furthermore, the stipulations in the Final Decree of Divorce, showed that the appellant and Veteran agreed that each was responsible for their own debts and obligations incurred from and after May 17, 1991, and that they relinquished all rights to proceeds from any sources, accrued or unaccrued, due the other party.  Based on the facts in this case, the Board finds that the Veteran did not have a responsibility for spousal support for the relevant period from January 2009 to May 2010.  Therefore, the provisions for a "general" apportionment are not applicable.  

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 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 in whose behalf the apportionment is claimed, and the special needs of the veteran, his or her dependents and the apportionment claimants.  38 C.F.R. § 3.451 further provides that apportionment of more than 50 percent of the veteran's benefits is ordinarily considered to constitute undue hardship on him or her while apportionment of less than 20 percent of his or her benefits is ordinarily considered insufficient to constitute a reasonable basis for any apportionment.  A veteran's benefits will not be apportioned where the total benefit payable to the disabled person does not permit payment of a reasonable amount to any apportionee.  38 C.F.R. § 3.458(a).  

Based on the income information submitted by the appellant, the Board finds that financial hardship has not been demonstrated.  The appellant reported that her monthly income exceeds her monthly expenses by approximately $300.  Therefore, the provisions for a "special" apportionment are not applicable.  

As the Veteran was not shown to have any responsibility for the support of his spouse from January 2009 to May 2010, and the evidence does not demonstrate the existence of hardship, there is no basis upon which to award an apportionment of his VA disability benefits to the appellant.  38 U.S.C.A. § 5307; 38 C.F.R. §§ 3.450, 3.451.  

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).  


ORDER

Entitlement to apportionment of the Veteran's VA compensation benefits for the appellant is denied.  


____________________________________________
TANYA A. SMITH
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs