Citation Nr: 1417332 Decision Date: 04/17/14 Archive Date: 05/02/14 DOCKET NO. 09-19 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Whether an apportionment of the Veteran's disability compensation benefits for the support of his minor child, A.M.F, is warranted. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Scott W. Dale, Counsel INTRODUCTION The Veteran served on active duty from June 1990 to March 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 special apportionment decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which, in pertinent part, awarded apportionment of the Veteran's benefits in the amount of $150 per month to the Veteran's minor child, A.M.F. The Veteran expressed disagreement with this determination, and the present appeal ensued. The Veteran was scheduled to appear at a videoconference hearing before the Board in December 2009. The day of his hearing, he requested that the hearing be rescheduled due to a family emergency. The Veteran's motion to reschedule the video hearing was denied by the Board the same day it was received and the Board will proceed with the current case without a hearing. In April 2009, the Veteran was provided a statement of the case (SOC) addressing the apportionment issue currently on appeal. The record does not contain a substantive appeal filed after the SOC, however, the Veteran's July 2009 written election for a video hearing before the Board timely demonstrated continued disagreement with the determination. Further, a September 2009 brief submitted by the Veteran's representative references a substantive appeal that was filed on April 27, 2009. Additionally, the claim was certified to the Board by the RO in October 2009. The Board therefore finds that VA has waived the issue of timeliness of the document and will proceed with the case. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that the 60-day period in which to file a substantive appeal is not jurisdictional, and thus VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly). After certification of the case to the Board, the Veteran requested that the RO provide him with copies of certain documents from his claims file under the Freedom of Information Act (FOIA) and Privacy Act. In July 2012, the RO informed the Veteran that his case was at the Board and they were unable to fulfill his request. The Veteran's request was forwarded to the Board, and the Veteran was notified in an August 2012 letter and a September 2012 letter from the Board that a proper signature was required to comply with the FOIA/Privacy Act request. No response to this letter was received. The Veteran's appeal was previously before the Board in November 2012, when it was remanded for further evidentiary development. As will be discussed below, the Board's remand directives were substantially completed by the RO, and the appeal was returned to the Board. Initial Note On October 11, 2006, VA received a claim for apportionment of the Veteran's disability compensation benefits for the support of his minor child, A.M.F, from the appellee, who is the Veteran's ex-wife and mother of A.M.F. In June 2007, the RO provided the appellee with the necessary financial forms and notice that, if the requested information was not received by VA within 60 days, a decision would be made on the evidence of record. In a December 2007 letter, the RO notified the appellee that the claim for apportionment was denied because the requested information had not been received by VA within the time period specified in the June 2007 letter. This letter also informed the appellee of her appellate rights and noted that the claim would continue being processed only if the requested evidence was received prior to June 25, 2008. In January 2008, VA received from the appellee a completed VA Form 21-0788 (Information Regarding Apportionment of Beneficiary's Award) as well as a hand-written account of the appellee's monthly income and expenses. After receiving this evidence, the RO provided notice to both parties and readjudicated the apportionment claim in the August 2008 special apportionment decision. As noted above, the Veteran expressed disagreement with the August 2008 determination, and the present appeal ensued. In light of above, because the appellee submitted the requested evidence within the 60-day appeal period of the December 2007 administrative decision and before June 25, 2008, readjudication of the apportionment claim based on all of the evidence of record was proper. See 38 C.F.R. § 3.156(b); 38 C.F.R. § 20.501 (2013); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011) (VA must assess any evidence filed during the relevant appeal period and make a determination as to whether it constitutes new and material evidence relevant to a pending claim). As such, the August 2008 special apportionment decision is the determination on appeal, and it stems from the claim for apportionment received by VA on October 11, 2006. FINDINGS OF FACT 1. The RO received the appellee's claim for apportionment of the Veteran's disability compensation benefits in October 2006. 2. The Veteran has been in receipt of VA disability compensation benefits at the 100 percent rate since September 20, 2004. 3. The most probative evidence demonstrates that the appellee's monthly expenses exceed her gross monthly income, creating a hardship with regard to providing for A.M.F.'s basic needs 4. The most probative evidence demonstrates that the Veteran's monthly expenses do not exceed his gross monthly income at any time during the appeal period. 5. In an August 2008 special apportionment decision, the RO granted a monthly apportionment of $150.00 of the Veteran's disability compensation benefits to his minor child, A.M.F., who is in the custody of the appellee, his ex-wife. 6. The Veteran's VA compensation payments have included an amount for the support of the dependent child, A.M.F. since March 1, 2002. 7. The most probative competent evidence does not demonstrate that a monthly apportionment of $150.00 of the Veteran's disability compensation benefits to his minor child, A.M.F., would create undue hardship to the Veteran or any other person of interest. CONCLUSION OF LAW The criteria for an apportionment of the Veteran's disability compensation benefits for the support of his minor child, A.M.F, in the amount of $150.00 per month are met. 38 U.S.C.A. §§ 5307, 5313 (West 2002); 38 C.F.R. §§ 3.450, 3.451, 3.665 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Clams Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Court of Appeals for Veterans Claims (Court) has, however, carved out exceptions to the VCAA's applicability. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). One of those exceptions is for claims that involve chapters of the United States Code other than chapter 51, the chapter applicable to "claims, effective dates, and payments." The Court held the VCAA inapplicable to chapter 53 benefits in both Barger v. Principi, 16 Vet. App. 132, 138 (2002) and Lueras v. Principi, 18 Vet. App. 435 (2004). As the claim in this case involves Chapter 53 benefits, specifically, the apportionment of benefits under 38 U.S.C.A. § 5307, the VCAA is inapplicable to the claim on appeal. There are, however, other notification and procedural requirements with regard to this claim. A claim for an apportionment is a "contested claim" and is subject to special procedural regulations as set forth in 38 C.F.R. §§ 19.100, 19.101, 19.102 (2013). See 38 C.F.R. §§ 20.500-20.504 (2013). The term "simultaneously contested claim" refers to the situation in which the allowance of one claim results in the disallowance of another claim involving the same benefit, or the allowance of one claim results in the payment of a lesser benefit to another claimant. 38 C.F.R. § 20.3(p) (2013). Under the applicable regulations, all interested parties will be specifically notified of the action taken by the agency of original jurisdiction in a simultaneously contested claim and of the right and time limit for initiating an appeal, as well as hearing and representation rights. 38 C.F.R. § 19.100. In addition, upon the filing of a notice of disagreement in a simultaneously contested claim, all interested parties will be furnished with a copy of the statement of the case. 38 C.F.R. § 19.101. When a substantive appeal is filed in a simultaneously contested claim, the content of the substantive appeal will be furnished to the other contesting parties to the extent that it contains information that could directly affect the payment or potential payment of the benefit that is the subject of the contested claim. 38 C.F.R. § 19.102. In the present case, the Veteran and the appellee have been provided notice of the evidence pertinent to apportionment claims, to include itemized lists of both parties' monthly income and expenses, and all determinations surrounding this appeal, to include the December 2007 administrative denial, August 2008 special apportionment decision, April 2009 Statement of the Case (SOC), November 2012 Board remand, and April 2013 Supplemental Statement of the Case (SSOC). As such, the Board concludes that the actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), to ensure compliance with the contested claims procedures applicable to matters involving two competing parties, were complied with. See 38 C.F.R. §§ 19.100-19.102, 20.500 - 20.504 (2013). In November 2012, the Board remanded the appeal to obtain updated financial status reports, as the most recent evidence pertinent to these matters was dated in November 2008 (the Veteran) and January 2008 (the appellee). In January 2013, the RO provided the Veteran and appellee VA Forms 21-0788's (Information Regarding Apportionment of Beneficiary's Award) at their most recent addresses and notified both parties that the requested information must be provided to VA within 60 days of the letter, and that, regardless of whether a response from either party was received in that time period, the case would be decided based on the evidence of record. The Board notes that neither letter nor VA form were returned to VA marked as "undeliverable" for any reason by the U.S. Post Office, and, to date, no response has been received from the Veteran or the appellee. The case was readjudicated by the RO in the April 2013 SSOC which was provided to both parties at their most recent addresses. To the extent that neither party responded to the RO's Board-directed January 2013 request for updated financial information, the Court has held that the duty to assist is not a one-way street. If a claimant wishes help, he or she cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In the present case, both parties were notified in the January 2013 letter of the types of evidence necessary for consideration of the present claim and provided appropriate VA forms on which to report it; however, neither party responded to this request. Based on the foregoing, the Board concludes that there has been substantial compliance with its November 2012 remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). Pertinent Laws - Apportionment Under 38 U.S.C.A. § 5307, if the veteran is not residing with his spouse and/or if the veteran's child is not in the veteran's custody, all or any part of the compensation or pension payable on account of the veteran may be apportioned as may be prescribed by the Secretary. 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. Specifically, 38 C.F.R. § 3.450 (a)(1)(ii) provides that an apportionment may be paid to the veteran's spouse if they are not residing together and for the veteran's child if the child is not in the veteran's custody, and the veteran is not reasonably discharging his responsibility for the spouse's and/or child's support. 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 of apportionment is a "special" apportionment which may be paid under the circumstances set forth in 38 C.F.R. § 3.451. This 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 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 on whose behalf the apportionment is claimed, and the special needs of the veteran, his dependents, and the apportionment claimants. An apportionment of more than 50 percent of the veteran's benefits is ordinarily considered to constitute undue hardship on him, while apportionment of less than 20 percent of his benefits is ordinarily considered insufficient to constitute a reasonable basis for any apportionee. 38 C.F.R. § 3.451. The special apportionment was 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. 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) (2013). Analysis In this case, the appellee is claiming entitlement to an apportionment of the Veteran's disability compensation benefits for the support of his minor child, A.M.F., for whom she is the custodial parent. The record reflects that the appellee is the Veteran's ex-wife, that the marriage was dissolved by a February 2002 divorce decree filed in the state of Utah, and that A.M.F., the daughter of the Veteran and the appellee, was born shortly thereafter, in April 2002, and has lived with the appellee ever since. The Veteran received dependency compensation for the appellee until she was removed from his award at his request, effective from March 1, 2002, and A.M.F. was added to the Veteran's award as a dependent, effective from May 1, 2002. As directed by the February 2002 divorce decree, the Veteran was ordered to pay a sum of $244.46 per month for A.M.F.'s support. The Veteran had been in receipt of disability compensation at the 100 percent rate for schizoaffective disorder, bipolar type, since September 20, 2004. In July 2007, the Veteran submitted a VA Form 21-0788, in which he reported Social Security Administration (SSA) income of $791.00 and a total of $50.00 for two bank accounts. He did not report any other income. His reported expenses included $774.00 for rent, $400.00 for food, $200.00 for utilities, $65.00 for telephone, $100.00 for clothing, $175.00 for school expenses, $675.00 for car expenses, and $308.00 for auto insurance. In an accompanying statement he reported that his two dependent children, one being A.M.F., received $267.00 each from Supplemental Security Income (SSI), public assistance, and the other dependent child received an additional $73.00 from SSI as well as $94.00 from VA. The Board notes that the Veteran's other dependent child identified by these records was later determined to be entitled to an additional apportionment of the Veteran's disability compensation benefits of $150.00. Although this amount was being withheld by VA at the time of the July 2007 report, it is not so reflected. In January 2008, the appellee submitted a VA Form 21-0788 as well as a hand-written statement of her monthly income and expenses. The VA Form 21-0788 reflects her report of $2,200 monthly, gross wages from employment, while the hand-written report shows income of $1,800 for monthly gross employment. Both records show that she receives monthly income from SSI of $273 for A.M.F. She did not report any other income on either document. Her reported monthly expenses included $1,000.00 for rent, $400.00 for groceries, $130.00 for utilities, $50.00 for telephone, $40.00 for clothing, $20.00 for school expenses, $75.00 for car maintenance and insurance, $100.00 for loans, $50.00 for medical expenses, $30.00 for laundry, $15.00 for life insurance, $100.00 for credit card payments, $170.00 for gasoline, and $300.00 for daycare for A.M.F., totaling $2,430.00 in monthly expenses. In the August 2008 special apportionment decision, the RO determined the Veteran was in receipt of $2,694.00 monthly from VA compensation and had other monthly income of $1,092.40 for a total monthly income of $3,786.40. His monthly expenses were listed as $2,691.00. The Veteran's net income after expenses was $1,095.40. The RO also noted that A.M.F. received $273.00 per month from SSI. The RO also noted that, while the Veteran was under court order to pay at least $244.46 per month in child support for the care of A.M.F., he claimed to be providing only $100.00 for the child's care, and the appellee claimed the he actually contributed "approximately $100.00 every 2-3 months" for the child's care. Additionally, the Veteran claimed to be putting $100.00 into a savings account for A.M.F. on a monthly basis. The RO acknowledged the discrepancies in the financial information provided by the Veteran and appellee, and noted that an April 2005 letter from the Utah Department of Human Service, Office of Recovery Services showed that, at that time, the Veteran owed $9,361.06 past due child support for A.M.F. and requested that VA withhold the monthly amount of $244.46 per month for current child support, although no such withholding of the Veteran's compensation was undertaken by VA. Nonetheless, the RO determined that the April 2005 letter indicated that the financial information reported by the appellee was "more correct." Based on the above and the RO's findings that the appellee had shown hardship and the Veteran had expendable income in excess of $1,000 per month, the RO granted a special apportionment of the Veteran's VA disability benefits on behalf of his minor child, A.M.F., in the amount of $150.00 per month in addition to the $100.00 per month that the Veteran had been paying, as this total monthly amount ($250.00) closely approximated the Veteran's child support obligation regarding A.M.F. as expressed in the February 2002 divorce decree. The Veteran's September 2008 notice of disagreement was accompanied by a completed VA Form 21-527 (Income-Net Worth and Employment Statement) showing that he contributed $423.00 per month in child support to A.M.F. as well as $500.00 per month in child support for another child from a separate relationship. He reported a gross monthly income of $1,404.00, which included compensation of $623.00 per month for his two children. He also reported last working in September 2003, becoming totally disabled in April 2005, and attending Salt Lake Community College from May 2004 to the present. Also of record is a September 2008 Non-Custodial Parent's Billing Statement from the State of California, which shows that the Veteran paid $127.50 on his monthly child support obligation of $244.46 for the care of A.M.F., and that, due to prior deficiencies in payment and interest charges, he was in arrears with regard to these payments in the amount of $16,955.96. In a November 2008 statement, the Veteran asserted that the recent grants of apportionments have placed him in financial hardship. He indicated that his vehicle was in danger of being repossessed and that he has been forced to hire an attorney to fight attempts to increase his child support obligation with regard to another dependent child from a separate relationship. He indicated that, as of September 2008, he was in arrears in his child support payments in the amount of $16,705.10 in the state of California and an undisclosed amount in the state of Washington. He stated that when the apportionments were granted, they created a $7,000.00 indebtedness amount with VA. The Veteran indicated that the increased apportionment would be a hardship for him, but did not provide any current financial data. As noted above, neither the Veteran nor the appellee have submitted additional, updated financial records. However, the claims file reflects that the Veteran's disability compensation has changed since 2008 due to legislative increases and the addition of two children as the Veteran's dependents, effective from August 1, 2009, and July 1, 2011. The critical matter before the Board in this case is whether the special apportionment of $150 per month for the care of the Veteran's child, A.M.F., would result in undue hardship for the Veteran, as he asserts. As stated above, such a determination must be made on the basis of the facts of the individual case, with consideration given to such factors as the amount of VA benefits payable, other income and resources of the veteran and those dependents on whose behalf the apportionment is claimed, and the special needs of the veteran, his dependents, and the apportionment claimants, as long as it does not cause undue hardship to the other persons in interest. As outlined above, the appellee's monthly expenses exceeded her monthly income in January 2008, and there is no indication that this has changed. To the contrary, although the Veteran's reports of his monthly income and the amounts and types of support he provides for the care of A.M.F. have varied wildly throughout the pendency of the appeal, there is no indication that his monthly expenses have exceeded his monthly income at any time during the appeal period. Specifically, there is no indication that the Veteran's SSA benefits, reported to have been $791.00 in July 2007, have decreased, and the Veteran's VA disability compensation benefits have increased throughout the appeal period due to legislative increases and the addition of two more dependent children. With regard to the latter, the Veteran's monthly VA disability compensation benefits at the time of the August 2008 decision were $2,694.00, but, beginning December 1, 2013, these benefits are $3,202.33 minus the amounts apportioned for the care of A.M.F. and the Veteran's other child, mentioned above, who is receiving VA apportioned monies. See Veterans Compensation Benefits Rates Tables (effective December 1, 2013), available at: http://www.benefits.va.gov/COMPENSATION/resources_comp01.asp. Although VA has requested updated financial information from the Veteran, which could possibly include a report of increased monthly expenses offsetting or surpassing his increased monthly gross income, he has not responded to the request. While this appears to be to his detriment in the present case, as noted above, VA has provided him the opportunity and materials to report this information to VA, but he has not cooperated with VA's efforts in this respect. Despite this increase in the Veteran's monthly income, he has provided VA with no evidence of increased monthly expenses. In this respect, in his November 2008 statement, the Veteran asserted that the VA's granting of the two apportionment claims (one of which being the appellee's) resulted in a $7,000 indebtedness to VA. However, this assertion is not necessarily true. Although the August 2008 special apportionment decisions created an indebtedness to VA due to the retroactive nature of the determinations, VA has withheld the amounts of the apportionments ($150.00 monthly for each child) during the pendency of the appeals. As such, the total amount of the apportionments to be paid was not distributed to the Veteran during the pendency of the appeals, and thus, he did not/does not have to pay the total amount out-of-pocket as he asserts. Further, although the Veteran stated in September 2008 that he contributed $423.00 per month in child support for A.M.F., the Board finds this report to be less than credible. Initially, the Veteran does not explain in the September 2008 report how this figure was calculated; however, although not dispositive of the matter, the Board notes that this figure can be reached by adding the $273.00 which A.M.F. received monthly from SSI with the $150.00 per month representing the amount of apportionment withheld by VA, and the subject of the current case. In passing, the Board acknowledges that the $273.00 monthly payment from SSI was/is not intended to be in lieu of payment of the Veteran's court-ordered child support obligation with regard to A.M.F. Further, the Board observes that the evidence recounted above shows that the Veteran was in arrears in child support payments for the care of A.M.F. at two points during the appellate period - $9,361.06 in April 2005 and $16,705.10 in September 2008. These amounts were reported by the Veteran and are substantiated by state-verified collection records. By subtracting these total amounts, it is clear that the Veteran's arrearage in child support payments with regard to A.M.F. increased by $7,344.04 in three and a half years (42 months). Dividing the amount of the increased arrearage in child support payments regarding A.M.F. from April 2005 to September 2008 ($7,344.04) by the number of months between the April 2005 and September 2008 reports (42 months), the Veteran's average deficiency in payment of the court-ordered child support payments with regard to A.M.F. is $174.86 per month. Considering that the court-ordered child support with regard to A.M.F. remains set at $244.46 per month, this evidence shows that, on average, the Veteran paid just under $70 per month. This evidence weighs heavily against the Veteran's September 2008 assertion that he contributed $423.00 per month in child support for A.M.F. The Board recognizes that the monthly $150 apportionment assigned in this case is less than 20 percent of the Veteran's benefits, which is ordinarily considered insufficient to constitute a reasonable basis for any apportionee. However, as noted above, the Veteran has been compensated by VA for this dependent child on a monthly basis and the evidence does not show that he has forwarded this benefit to support her. The $150 apportionment is slightly more than the amount the Veteran has received per month from VA for the minor child. However, as noted above, although the Veteran has asserted that this apportionment of his disability compensation benefits would result in undue hardship to him, he has not provided VA with supporting evidence despite being provided ample opportunity to do so. Considering the totality of the circumstances, the Board concludes that an apportionment of the Veteran's disability compensation benefits for the support of A.M.F., his minor child with the appellee, in the amount of $150 is warranted. The Board notes that 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 opposing, interested parties. See Elias v. Brown, 10 Vet. App. 259, 263 (1997). ORDER Apportionment of the Veteran's disability compensation benefits for the support of his minor child, A.M.F, in the amount of $150 is warranted, and the appeal is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs