Citation Nr: 1414515 Decision Date: 04/03/14 Archive Date: 04/11/14 DOCKET NO. 11-03 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an increased apportionment of the Veteran's VA compensation benefits in an amount in excess of $130.00 per month prior to February 1, 2010, to include the termination thereof as of February 1, 2010. ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to June 1972. The appellant is the Veteran's ex-spouse; they were estranged for 30 years prior to their divorce on January [redacted], 2010. The Veteran died on February [redacted], 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 special apportionment decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas, which denied the appellant's request for an increase in her apportionment. In a January 2010 letter, the RO informed the appellant that it had decided to discontinue her apportionment beginning February 1, 2010, due to the fact that a financial need was no longer established. In a March 2010 letter, after receiving a divorce decree from the Veteran, the RO informed the appellant that it had decided to discontinue her apportionment beginning February 1, 2010, due to the fact that she and the Veteran had divorced on January [redacted], 2010. The appellant was scheduled to present testimony at a travel board hearing before a Veterans Law Judge in September 2011. However, the appellant failed to report to the hearing. As the record does not contain further explanation as to why the appellant failed to report to the hearing, or a request to reschedule the hearing, the Board deems the appellant's request for such a hearing to be withdrawn. FINDINGS OF FACT 1. During the appeal period and prior to the Veteran's death on February [redacted], 2012, he was in receipt of VA disability compensation at the 100 percent rate. 2. The Veteran and the appellant divorced on January [redacted], 2010, and VA discontinued her apportionment of $130.00 per month as of February 1, 2010. 3. During the appeal period and prior to February 1, 2010, the appellant was in receipt of an apportionment of $130.00 per month. 4. During the appeal period and prior to February 1, 2010, a financial hardship for the purpose of an increased special apportionment is not shown. CONCLUSIONS OF LAW 1. The criteria for an increased special apportionment of the Veteran's VA compensation benefits during the appellate period have not been met. 38 U.S.C.A. §§ 101, 5307 (West 2002); 38 C.F.R. §§ 3.1, 3.50, 3.450, 3.451, 3.458 (2013). 2. The criteria for termination of apportionment of the Veteran's VA compensation benefits as of February 1, 2010 are met. 38 U.S.C.A. §§ 101, 5307 (West 2002); 38 C.F.R. §§ 3.1, 3.50, 3.450, 3.451, 3.458 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties 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, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). This appeal, however, concerns a benefit provided under chapter 53 of title 38, United States Code. The rules governing VA notice and assistance upon receipt of a claim for benefits as outlined in 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159 do not apply to claims for benefits provided under chapters other than chapter 51. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). VA rules do, however, include special procedural requirements for simultaneously contested claims, such as a claim for apportionment. 38 C.F.R. §§ 19.100, 19.101, and 19.102 (2013). Here, review of the claims file reveals that the applicable contested claims procedures have been followed. Specifically, the RO has provided both parties (the appellant and the Veteran) with appropriate notices and determinations related to the contested claim, and advised both parties of the applicable law and regulations. With regard to the development of the claim, all known and available records relevant to the issue on appeal have been obtained and associated with the claims file. Additionally, VA has afforded both of the parties the opportunity to give testimony before the Board. The Board therefore concludes that neither the appellant nor the Veteran is prejudiced by a decision of the Board on the claim at this time. Analysis The appellant contends in her August 2009 statement that she is entitled to an increased apportionment of the Veteran's compensation benefits in excess of the amount of $130.00 per month that she received prior to February 1, 2010. In her February 2010 notice of disagreement, the appellant contends that the financial figures that she provided to VA in July 2009 were in error, and that she now earned less income than she had previously stated due to a reduction in her working hours. In her February 2011 substantive appeal, the appellant disputed her January [redacted], 2010 divorce from her ex-husband. A veteran's benefits may be apportioned if the veteran is not residing with his spouse, and a claim for apportionment is filed for or on behalf of the spouse. 38 C.F.R. § 3.452(a). VA regulations provide for two types of apportionments. The first type is a "general" apportionment, which may be paid under the circumstances set forth in 38 C.F.R. § 3.450. 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, and the veteran is not reasonably discharging his responsibility for the spouse'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. Hall v. Brown, 5 Vet. App. 294 (1993). The second type 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 applies where a veteran is reasonably discharging his responsibility for the support of any claimant who might otherwise be entitled to a "general" apportionment, but special circumstances-such as an inability to pay for essentials such as food, clothing, shelter or medical expenses-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 these 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(a)(1)(ii), 3.451. In this case, the Board finds that the weight of the evidence is against increasing the apportionment of the Veteran's compensation benefits to an amount in excess of $130.00 per month during the appellate period prior to February 1, 2010. With respect to a "general" apportionment, the Board finds that the Veteran reasonably discharged his responsibility for the appellant spouse's support during the appellate period prior to February 1, 2010. Specifically, prior to February 1, 2010, the Veteran was providing monthly support to the appellant in the amount of $130.00 a month in the form of an apportionment of his VA benefits. Such apportionment is reasonable because it approximately comported with the VA Compensation Rate Tables effective as of December 1, 2008, and December 1, 2009, both of which list the rate payable for a spouse of a Veteran in receipt of VA benefits at the 100 percent level as $150.00 a month (i.e., $2,823 - $2,673 = $150), or $20.00 less than the $130.00 amount apportioned to the appellant. The evidence demonstrates that the Veteran had reasonably discharged his responsibility to his spouse prior to February 1, 2010, and therefore no increase pursuant to a "general" apportionment was warranted. 38 C.F.R. § 3.450(a)(1)(ii). With respect to a "special" apportionment, the Board finds that the evidence does not show that hardship existed for the appellant during the appellate period prior to February 1, 2010, and no special circumstances existed which would have warranted additional support from the Veteran to the appellant. Specifically, the appellant certified on her July 2009 VA Form 21-0788, Information Regarding Apportionment of Beneficiary's Award, that she earned $1,800.00 per month in wages-not counting her $130.00 per month apportioned from the Veteran's benefits-and had expenses totaling $1,667.00 per month. Similarly, the appellant certified on her February 2010 VA Form 21-0788 that she earned $1506.56 per month in wages, plus $130 per month apportioned from the Veteran's benefits, and had expenses totaling $1,421.00 per month. Although the appellant stated in August 2009 that her paycheck does not meet the needs of her daily living, including her medical needs, this assertion is outweighed by the financial evidence cited above. Furthermore, although the appellant reported in her February 2010 notice of disagreement that her work hours had been cut, the February 2010 VA Form 21-0788 reflects that her expenses also decreased such that her monthly income exceeded her expenses and no hardship was shown. In the absence of hardship, no "special" apportionment was warranted during the appellate period prior to February 1, 2010. 38 C.F.R. § 3.451. The Board is sympathetic to the appellant's claim. Moreover, it has considered her statements that she experiences difficulty meeting the needs of her daily living. However, as discussed above, the appellant has, by her own admission, sufficient income to cover her essential living expenses. In this regard, the Board notes that it has relied solely on the information provided by the appellant in evaluating her financial need and that no accounting of this evidence reveals that her income is insufficient such that an increased special apportionment is warranted. As this specific financial information is more probative than the appellant's generic statements regarding financial need, the Board finds that hardship is not demonstrated. As a final matter, the Board acknowledges that under VA's own guidelines, an apportionment of less than 20 percent of the Veteran's benefits generally would not provide a reasonable amount for any apportionee, and that undue hardship is ordinarily not recognized until more than 50 percent is apportioned. In this case, the $130.00 amount monthly apportioned is well below the 20 percent level of the Veteran's compensation benefits (which totaled more than $2,000 per month). However, the circumstances of this case indicate that the appellant's income consistently exceeds her essential expenses. In fact, despite her lay assertions, the financial information presented throughout this appeal fails to reflect that the appellant's expenses were ever in excess of her income. As such, hardship on the part of the appellant is not shown and the criteria for assignment of an increased level of special apportionment under 38 U.S.C.A. § 3.451 are not met. In summary, the criteria for the assignment of an increased apportioned share of the Veteran's disability benefits under 38 C.F.R. §§ 3.340 and 3.451 for the appellate period prior to February 1, 2010, are not shown to have been met, and the claim must be denied. The benefit of the doubt rule is not for application in a contested claim such as this case because the benefit of the doubt cannot be given to both an appellant and a veteran. Elias v. Brown, 10 Vet. App. 259, 263 (1997). In addition to the foregoing, the Board further finds that the termination of the appellant's apportionment, effective as of February 1, 2010, was warranted. Apportionment applies in the case of a spouse, but not a divorced former spouse. 38 C.F.R. §§ 3.450, 3.451. In pertinent part, for VA purposes the term "spouse" means a person whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j). 38 U.S.C.A. § 101(31), 38 C.F.R. § 3.50. Under 38 C.F.R. § 3.1(j), "marriage" means a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. Review of the record shows that the continuation of entitlement to apportionment for the appellant as of February 1, 2010, is not warranted. The Veteran submitted a Decree of Divorce to VA, which is dated January [redacted], 2010, and signed by a Circuit Judge of the Circuit Court of Pulaski County, Arkansas. In light of the documentation of the Decree of Divorce, the Board finds that the evidence of divorce is dispositive, and the appellant's February 2011 assertions that she did not sign or receive notice of the divorce, and that it was "done under less than honorable conditions," are without merit. The appellant and Veteran are divorced as of January [redacted], 2010. As such, and as the RO properly found in its March 2010 determination, the appellant is not entitled to an apportionment of the Veteran's VA benefits as of February 1, 2010, the first day of the month following the effective date of termination. The RO thus rightly terminated the award of benefits to the appellant. 38 U.S.C.A. § 101(31); 38 C.F.R. §§ 3.1(j), 3.50, 3.450, 3.451. As of January [redacted], 2010, the appellant was no longer the spouse of the Veteran; therefore, her claim of entitlement to continued apportionment of the Veteran's benefits as of February 1, 2010 must be denied. In a case where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The appeal is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs