Citation Nr: 1410169 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 11-26 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an apportionment of the Veteran's VA compensation benefits for the Appellant. ATTORNEY FOR THE BOARD L. Edwards Andersen, Counsel INTRODUCTION The Veteran had active service from February 1962 to February 1964. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an August 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied apportionment of the Veteran's VA compensation benefits. FINDINGS OF FACT 1. The Veteran and Appellant were married in October 1996, separated in July 2008, and were divorced in May 2010. 2. The Appellant's claim for apportionment of the Veteran's VA benefits was received in August 2010. 3. The Appellant is not entitled to an apportionment as a matter of law. 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). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist 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. 2013) 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) (2013). 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 and both he and the Appellant were given copies of the Statement of the Case (SOC) and Supplemental Statements of the Case (SSOC). II. Entitlement to an Apportionment of the Veteran's VA Compensation Benefits for the Appellant The Appellant seeks an apportionment of the Veteran's VA compensation benefits. She asserts she is entitled to an apportionment for the period of time she was separated from the Veteran. Service connection was established for cold injury residuals of the right and left feet by a rating decision in January 2006, effective July 2001. At the time of the award, the record showed that the Veteran was not married and had no dependents. The Veteran submitted information in February 2006 notifying the VA that he was married to the Appellant. See VA Form 21-686C. In April 2006, the Veteran was notified that his benefits were changed to include his spouse, effective August 2001. The Veteran and the Appellant separated in July 2008. See May 2010 Divorce Decree. The divorce was final on May 6, 2010. Id. In July 2010, the Veteran notified the VA that his marriage terminated. See July 2010 VA Form 21-4138. The Appellant submitted a claim for apportionment in August 2010, indicating that although her divorce was final in March 2010 she had been separated since July 2008. See August 2010 VA Form 21-4138. Following her request for apportionment, the Appellant was notified that the evidence did not indicate she was the Veteran's spouse and therefore, entitlement to an apportionment was denied. In her notice of disagreement and substantive appeal, the Appellant asserted that she had not received payments since August 2008, when she and the Veteran separated. She indicated that at the time of the separation she was not aware that she could request her benefits. See August 2010 Notice of Disagreement and September 2011 VA Form 9. 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 October 1996, that no children were born of the marriage, and that they were divorced in May 2010 on the grounds of one-year separation. 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 August 4, 2010. Therefore, while the Board is sympathetic to the Appellant's arguments, based on the facts in this case, the Appellant is not entitled to any apportioned share since her claim was filed after the divorce was final. As the Appellant is not eligible for an apportionment after May 2010 and a claim was not filed until August 2010, as a matter of law, there is no basis upon which to award an apportionment of the Veteran's 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. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs