Citation Nr: 1452139 Decision Date: 11/25/14 Archive Date: 12/02/14 DOCKET NO. 12-16 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an apportionment of the Veteran's VA benefits prior to April 1, 2012 and entitlement to an apportionment of benefits in excess of $75.00 a month from April 1, 2012. ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1969. The appellant is the Veteran's spouse. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a February 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Management Center in Milwaukee, Wisconsin which denied an apportionment of the Veteran's benefits. Jurisdiction over the appeal was subsequently transferred to the RO in Jackson, Mississippi. In a January 2013 decision, the RO granted an apportionment in the amount of $75.00 a month from April 1, 2012; the Board has accordingly recharacterized the issue on appeal. FINDINGS OF FACT 1. For the entire appeal period, the Appellant has not established that the Veteran was not reasonably discharging his responsibility for her support. 2. The Appellant has not established undue financial hardship to warrant an apportionment of benefits prior to April 1, 2012. 3. The Appellant has not established undue financial hardship to warrant additional apportionment of benefits in excess of $75 a month from April 1, 2012. CONCLUSIONS OF LAW 1. The criteria for an apportionment of the Veteran's VA benefits prior to April 1, 2012, have not been met. 38 U.S.C.A. § 5307 (West 2002); 38 C.F.R. §§ 3.450, 3.451, 3.452, 3.458 (2014). 2. The criteria for an apportionment of VA benefits, in excess of $75.00 a month, from April 1, 2012 have not been met. 38 U.S.C.A. § 5307 (West 2002); 38 C.F.R. §§ 3.450, 3.451, 3.452, 3.458 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist This appeal concerns a claim for benefits 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 (West 2002) and 38 C.F.R. § 3.159, the Veterans Claims Assistance Act of 2000 (VCAA), do not apply to claims for benefits provided under chapters other than chapter 51. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). While the VCAA does not apply to decisions regarding how benefits are paid, VA rules do include special procedural requirements for simultaneously contested claims, such as a claim for apportionment. See 38 C.F.R. §§ 19.100, 19.101, and 19.102 (2013); Barger v. Principi, 16 Vet. App. 132, 138 (2002) (holding that the notice and duty to assist provisions of the VCAA do not apply to chapter 53 waiver of recovery matters, as chapter 53 already contains its own notice provisions). A 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 (2014). The Board finds that the applicable contested claims procedures were followed in this case as the RO provided the Appellant with notice of her procedural and appellate rights along with the decision, as well as in a June 2012 statement of the case. A June 2012 notice of appeal and statement of the case were also sent to the Veteran. Apportionment Law and Analysis A Veteran's benefits may be apportioned if the Veteran is not residing with his spouse or children, and a claim for apportionment is filed for or on behalf of the spouse or children. 38 C.F.R. § 3.452(a) (2014). 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. 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 or children, and the Veteran is not reasonably discharging his responsibility for the spouse's or children's support. 38 U.S.C.A. § 5307(a)(2) (West 2002); 38 C.F.R. § 3.450(a)(1)(ii) (2014). It is not necessary for the claimant to establish the existence of hardship in order to obtain an apportionment. 38 C.F.R. § 3.450 (2014); 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 (2014). Both of these types of apportionments (either "general" or "special" apportionment) 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 (2014). The Appellant contends that because the Veteran is in receipt of VA pension benefits at a rate applicable to a veteran with a dependent spouse, that an apportionment of the spousal benefit is warranted. After a review of all the evidence, the Board finds that an apportionment of the Veteran's benefits is not warranted prior to April 1, 2012, and an apportionment in excess of $75.00 a month is not warranted from April 1, 2012. 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 or children, and the Veteran is not reasonably discharging his responsibility for the spouse's or children's support. 38 U.S.C.A. § 5307(a)(2); 38 C.F.R. § 3.450(a)(1)(ii). The Board finds that for the entire appeal period the Appellant has not established that the Veteran was not reasonably discharging his responsibility for her support; thus, an apportionment is not warranted under the general apportionment provisions of 38 C.F.R. § 3.450. The record shows that in March 2010, the Veteran was awarded VA pension benefits in the amount of $979.00 a month, and that this amount was calculated based on the pension rate for a veteran with one dependent, reduced by an annual spousal income reported in the amount of $3,744.00. In a July 2010 income and expense statement (VA Form 21-0788), the Appellant reported that she was in receipt of a $349.00 a month contribution from the Veteran; however, inconsistent with the report provided in the income and expense statement, in March 2010 and June 2010 lay statements, the Appellant indicated that she received no money from the Veteran. In a May 2012 income and expense statement, the Appellant reported receiving a $337.00 a month contribution from the Veteran, but in an October 2012 income and expense statement, she reported receiving no contribution from the Veteran. Due to the inconsistencies in the Appellant's lay statements, it is difficult to ascertain whether the Veteran was or was not reasonably discharging his responsibility for the Appellant's support to warrant an apportionment of benefits under 38 C.F.R. § 3.450; however it appears that the Veteran has contributed at least some amount toward the Appellant's support based on the July 2010 and May 2012 income and expense statements. Moreover, the record shows that the Appellant was granted an apportionment of benefits effective April 1, 2012. In light of the RO's award of an apportionment of the Veteran's benefits from April 1, 2012, the Board finds that for the entire appeal period from April 1, 2012, the Veteran has been reasonably discharging his responsibility for support of the Appellant. See 38 U.S.C.A. § 5307(a)(2) (West 2002); 38 C.F.R. § 3.450(a)(1)(ii). Accordingly, the Board finds that for the entire appeal period, both prior to and from April 1, 2012, the Appellant has not established that the Veteran was not reasonably discharging his responsibility for her support. See 38 U.S.C.A. § 5307(a)(2) (West 2002); 38 C.F.R. § 3.450(a)(1)(ii). For these reasons, the Board finds no basis to award the Appellant an apportionment of the Veteran's benefits pursuant to 38 C.F.R. § 3.450. The Board will next consider whether the grant of a special apportionment of the Veteran's benefits for the Appellant's support is warranted. Where hardship is shown to exist, a Veteran's compensation may be specially apportioned to the Veteran's dependents as long as such apportionment would not cause undue hardship to other persons in interest including the veteran. 38 C.F.R. § 3.451. The provisions for special apportionment were apparently 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 where special circumstances exist which warrant giving additional support to "dependents." 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 the Veteran and claimant simultaneously. Elias v. Brown, 10 Vet. App. 259, 263 (1997). After a review of all the evidence, the Board finds that for the entire appeal period prior to April 1, 2012, the Appellant has not established undue financial hardship to be awarded apportionment of benefits under the special apportionment provisions of 38 C.F.R. § 3.451. In a July 2010 income and expense statement, the Appellant identified monthly income in the amount of $744.00 a month in Social Security Benefits, Supplemental Social Security Income, and child support payments. The Appellant also reported that she was in receipt of $349.00 a month contribution from the Veteran. She identified $631.00 in monthly expenses, to include $131.00 for rent or mortgage payments, $200 for utilities, $80.00 for telephone bills, $20.00 for medications, and $200 for car and gas payments. The Appellant also indicated that she received $337.00 a month in food stamps for food costs. Based on the income and expenses identified above, the Board finds that regardless of the amount of monthly contributions reported to be received from the Veteran, for the entire appeal period prior to April 1, 2012, the Appellant's living expenses did not exceed her available income. Accordingly, the Board finds that, prior to April 1, 2012, the Appellant has not established undue financial hardship to warrant an apportionment of benefits. After a review of all the evidence, the Board finds that for the entire appeal period from to April 1, 2012, the Appellant has not established undue financial hardship to be awarded an additional apportionment of benefits, in excess of $75.00 a month, under the special apportionment provisions of 38 C.F.R. § 3.451. The Appellant identified monthly income in the amount of $718.00 a month from Social Security Benefits and Supplemental Social Security Income in updated May 2012 and October 2012 income and expense statements. The Appellant also reported that she was in receipt of $337.00 a month contribution from the Veteran in the May 2012 income and expense statement, but reported in October 2012, that she received no contribution from the Veteran. In the May 2012 income and expense statement, the Appellant identified $562.00 in monthly expenses, to include $127.00 for rent or mortgage payments, $100.00 for food, $120.00 for utilities, $55.00 for telephone bills, $100.00 for clothing, and $60.00 for cable. The Appellant also identified other expenses in the amount of $152.00 for furniture. In this case, the Board has excluded the Appellant's furniture purchase in calculating her monthly living expenses because the purchase is not shown to be a monthly, recurring living expense. In the October 2012 income and expense statement, the Appellant identified $422.00 in monthly expenses, to include $127.00 for rent or mortgage payments, $60.00 for food, $140.00 for utilities, $50.00 for telephone bills, and $45.00 for cable. The Appellant also identified other expenses in the amount of $377.00 for furniture, which the Board has, again, excluded in calculating monthly expenses as this is not shown to be a monthly, recurring living expense. Based on the income and expenses identified above, the Board finds that regardless of the amount of monthly contributions reported to be received from the Veteran, for the entire appeal period from to April 1, 2012, the Appellant's living expenses did not exceed her available income. The Board notes that even if the Appellant's furniture expenditures were not excluded from her monthly expense calculations, her income would still exceed identified expenditures in the May 2012 income and expense report. Even with the higher, nonrecurring $377.00 furniture expense identified in October 2012, the Appellant's expenses only exceeded her income by $81.00, an amount that would be offset by the $75.00 monthly apportionment of benefits granted to the Appellant from April 1, 2012. Accordingly, the Board finds that from April 1, 2012, the Appellant has not established undue financial hardship to warrant an additional special apportionment of benefits in excess of $75.00 a month. The Veteran has not submitted financial information in this case. However, an unrelated February 2008 claim for benefits shows that the Veteran was unemployed due to disability, and the record shows that he was in receipt of VA pension benefits in the amount of $979.00 a month prior to April 1, 2012. In January 2013, the Appellant was awarded an apportionment effective April 1, 2012. The record shows that from April 1, 2012, the Veteran's VA benefits award was amended to $939.00 a month after distribution of the apportionment amount, and that he received $957.00 a month from December 2012. The Board finds that the Veteran is shown to have income limited to his VA pension benefits. While it is unclear whether an additional apportionment of the Veteran's VA benefits would result in a financial hardship to the Veteran, the Board finds that hardship or individual need not been demonstrated by the Appellant in this case. The Board finds, based on available income and expense information provided by the Appellant, that she has not demonstrated hardship such that a special apportionment prior to April 1, 2012 is warranted, nor is an additional apportionment in excess of $75.00 a month warranted from April 1, 2012. For these reasons, the Board finds that the Appellant is not entitled to special apportionment of the Veteran's VA benefits under the provisions of 38 C.F.R. § 3.451. For the reasons discussed above, the Board finds that the evidence is against the appeal for an apportionment prior to April 1, 2012, and against the appeal for an additional apportionment of the Veteran's VA benefits from April 1, 2012 under both 38 C.F.R. §§ 3.450 and 3.451, and the claim must be denied. ORDER An apportionment of benefits prior to April 1, 2012 is denied, and apportionment of benefits in excess of $75.00 a month from April 1, 2012 is denied. ____________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs