Citation Nr: 1443216 Decision Date: 09/26/14 Archive Date: 10/06/14 DOCKET NO. 12-06 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Eligibility for apportionment of the Veteran's disability compensation benefits. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from March 1967 to August 1987. The appellant is the former spouse of the Veteran; they married in June 1967 and were divorced in January 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 administrative determination by the Denver, Colorado, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to an apportionment. FINDINGS OF FACT The appellant and the Veteran were divorced effective January [redacted], 2005 and have not since been remarried to each other. CONCLUSION OF LAW The criteria for eligibility for apportionment of the Veteran's disability compensation benefits are not met. 38 U.S.C.A. § 5307 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.50, 3.450, 3.452 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Here, however, the notification and assistance provisions are not applicable, as the claim cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). The facts are undisputed. The Veteran and appellant were married in June 1967. The appellant sued for and was granted a divorce from the Veteran. A final decree was entered on January [redacted], 2005. They remain divorced. Neither party has questioned the validity of the divorce decree. The appellant filed the instant claim for an apportionment of the Veteran's VA compensation benefits in April 2010, after her divorce from the Veteran. Apportionment is a mechanism by which a portion of a Veteran's benefits, either pension or compensation, may be paid directly to his or her dependents. Key to basic eligibility for apportionment is a dependent relationship. VA recognizes a spouse, a surviving spouse, children, or parents as dependents eligible for apportionment. 38 C.F.R. §§ 3.450, 3.452. Upon a divorce from a Veteran, the ex-spouse loses her status as a veteran's spouse, including any potential entitlement to an apportionment of his VA disability compensation, effective from the date of their divorce. See 38 U.S.C.A. § 101(31); 38 C.F.R. §§ 3.1(j), 3.50. A divorce severs the dependent relationship. Because the appellant was not married to the Veteran (i.e., not his spouse) at any time during the pendency of the current claim, she is not a proper claimant for an apportionment under 38 U.S.C.A. § 5307 and 38 C.F.R. § 3.450, and she is not eligible for an apportionment as a matter of law. Therefore, the appeal must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App.426 (1994). The appellant argues that she has had a material change in her living circumstances in that she is now responsible for increased monthly expenses, she depends on the support of her former spouse, the Veteran, to live, and she would suffer great hardship if the apportionment is not granted. See the March 2011 notice of disagreement. The Board is sympathetic to the appellant and her financial situation. However, the Board is without authority to grant equitable relief; the Board is constrained to follow the specific provisions of law that govern the circumstances of this case and that are within the jurisdiction and authority of the Board to review. See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 390, 425 (1994). The Board has no authority to grant a benefit that is not authorized by law. See 38 U.S.C.A. §§ 501, 7104. By law the appellant is not eligible for the remedy she seeks; apportionment is not due ex-wives. Only current spouses may benefit from apportionment. Finally, the appellant argues that she is entitled to apportionment of some part of the Veteran's compensation benefit based upon the provisions of the divorce decree, as that document directed a payment of half of the Veteran's VA benefits to the appellant. The Board is not empowered to enforce the divorce decree. Apportionment is possible only to provide support for the dependents of a Veteran. The January 2005 divorce severed the dependent relationship between the Veteran and the appellant, and she is accordingly not eligible for apportionment. While the Board is sympathetic to her financial straits, there can be no remedy in this forum. ORDER Entitlement to an apportionment of the Veteran's disability compensation benefits is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs