Citation Nr: 1514030	
Decision Date: 04/01/15    Archive Date: 04/09/15

DOCKET NO.  13-03 978	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Pension Management Center, Milwaukee, Wisconsin


THE ISSUE

Entitlement to an apportionment of the Veteran's nonservice-connected pension.


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel


INTRODUCTION

The Veteran served on active duty from September 1969 to September 1970. 

This appeal to the Board of Veterans' Appeals (Board) arose from an October 2012 decision of the Department of Veterans' Affairs (VA) Pension Management Center (Agency of Original Jurisdiction (AOJ)) in Milwaukee, Wisconsin that determined an additional apportionment of the Veteran's pension would cause a hardship on the Veteran.

On her February 2013 Substantive Appeal (VA Form 9), the appellant indicated that she desired a local hearing before an AOJ decision review officer.  A March 2013 AOJ letter informed her that the hearing was scheduled for April 24, 2013.  An April 2013 VA Form 21-0820, however, reflects that the appellant, via telephone, withdrew her request for a hearing.

In addition to his paper claims file, the Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his appeal.  The Board has considered the documents in both files while reviewing this appeal.

An October 2012 decision also denied a separate claim of the Veteran's son, D.W., on his own behalf because there was no evidence that he was attending school.  After expiration of the 60-day appeal period, the AOJ received D.W.'s December 2012 letter that included evidence of enrollment in school.  Since D.W.'s response was received after the appeal period, the issue of entitlement to an apportionment of the Veteran's nonservice-connected pension has been raised by the record in a December 2012 statement, but has not been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2014).


FINDINGS OF FACT

1.  A February 2000 rating decision granted the Veteran's claim for nonservice-connected pension benefits.

2.  The Veteran and the appellant were married in October 2003 and separated in October 2006; the Veteran has not contributed to the appellant's monthly support since October 1, 2006, the effective date the AOJ assigned for the separation.

3.  The appellant informed the AOJ in April 2013 that she and the Veteran were divorced, but there is no official decree in the claims file to that effect.

4.  The Veteran and the appellant are presumed married for purposes of this appeal.

5.  In November 2011, the AOJ separately apportioned $200.00 per month for the Veteran's son, D.W., whose date of birth is December 1993.

6.  During the pendency of this appeal, the Veteran's sole income has been his VA disability pension.

7.  Both the appellant's and Veteran's monthly expenses exceed their monthly income.

8.  No reasonable apportionment of the Veteran's VA nonservice-connected pension benefits can be made to the appellant without hardship to the Veteran.


CONCLUSION OF LAW

The criteria for an apportionment of the Veteran's VA pension benefits on behalf of his spouse have not been met.  38 U.S.C.A. §§ 5107, 5307 (West 2014); 38 C.F.R. §§ 3.50, 3.159, 3.450, 3.451, 19.100, 19.101, 19.102 (2014).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096 , 2096-2097 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103 , 5103A (West 2014).  The VCAA does not apply to decisions regarding how benefits are paid.  Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). An apportionment decision involves deciding how existing benefits are to be paid. Under Sims, the VCAA is not applicable to this claim.

Although not governed by the VCAA, a claim for an apportionment of a veteran's benefits is a "simultaneously contested claim," and is subject to special procedural regulations.  See 38 C.F.R. §§ 19.100, 19.101, 19.102.  A "simultaneously contested claim" refers to a 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).  With respect to the special procedural regulations, all interested parties in a simultaneously contested claim will be specifically notified of the action taken by the AOJ and of the right and time limit for initiating an appeal, as well as hearing and representation rights.  38 C.F.R. § 19.100.  Further, upon the filing of a notice of disagreement in a simultaneously contested claim, all interested parties and their representatives are to be furnished a copy of the statement of the case (SOC).  See 38 C.F.R. § 19.101.

In the instant case, in separate letters dated in July 2012, the AOJ informed the appellant that her claim was received and informed Veteran of the appellant's claim for an apportionment of his pension.  The letters also informed both that they should submit evidence of expenses, etc., that would be used to make a decision.
Separate letters dated in October 2012 informed the appellant and the Veteran that the appellant's claim had been denied.  In January 2013, the AOJ issued a copy of the SOC to the appellant and the Veteran.  

The Veteran has not been furnished a copy of the substantive appeal (VA Form 9) filed by the appellant in February 2013.  Nevertheless, while all of the special procedural requirements applicable to simultaneously contested claims were not followed in this case with respect to the Veteran, such errors do not result in any prejudice to the Veteran because, as will be discussed below, entitlement to an apportionment of his VA compensation benefits is being denied.  Thus, the Board finds adequate compliance with the contested claims procedures.

Applicable Legal Criteria

A veteran's benefits may be apportioned if a 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) (2013).

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. 

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.  More specifically, all or any part of the pension or compensation payable on account of any veteran may be apportioned if a veteran is not residing with his spouse or children, and a 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).  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. See Hall v. Brown, 5 Vet. App. 294 (1993).  No apportionment will be made where a veteran is providing for dependents.  38 C.F.R. § 3.450.

The second type is a "special" apportionment.  38 C.F.R. § 3.451.  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 a 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.

Both types of apportionments (either "general" or "special" apportionment) are payable to a spouse or dependent.  38 U.S.C.A. § 5307(a)(2); 38 C.F.R. §§ 3.450(a)(1)(ii), 3.451.

In addition, 38 C.F.R. § 3.451 provides that apportionment of more than 50 percent of a veteran's benefits is ordinarily considered to constitute undue hardship on him or her while apportionment of less than 20 percent of his or her benefits is ordinarily considered insufficient to constitute a reasonable amount for any apportionee.

The rate to be apportioned under either 38 C.F.R. § 3.450 or 3.451 is determined under the criteria of 38 C.F.R. § 3.451.  See 38 C.F.R. § 3.453.

The "benefit-of-the-doubt" rule is not for application in a contested claim such as this case, as the benefit of the doubt cannot be given to both the appellant and the Veteran simultaneously.  Elias v. Brown, 10 Vet. App. 259, 263 (1997).

In the absence of a divorce decree, VA presumes that he and the appellant are still married for purposes of this decision.

Analysis

An April 2007 statement (VA Form 21-4138) informed the AOJ that the Veteran and the appellant had been separated since October 2006.  The AOJ asked the Veteran to provide the specific date on which the separation was effective; and, in the absence of a response, October 1, 2006 would be deemed the date of separation.  There is no record of a response from the Veteran.  A February 2008 AOJ letter informed the appellant that she had been removed as a beneficiary for the Veteran's VA benefits, effective October 2006.

Pursuant to a December 2010 claim by the appellant, a November 2011 AOJ decision granted an apportionment of $200.00 for month to appellant on behalf of D.W., effective January 2011.  VA received the appellant's current claim in March 2012.

The evidence of record shows that, while there is no evidence of an official decree of divorce, the Veteran and the appellant have in fact lived separate and apart since October 2006.  The Board notes February 2008 correspondence from the appellant that notes October 2007, but also notes that she did not dispute the 2006 date in the AOJ letter that informed her she had been removed as a spouse for purposes of payments to the Veteran as of October 2006.  A February 2011 letter from the appellant to the AOJ noted that she and the Veteran had been separated for a long time.  Thus, while not divorced or living under a judicial separation order, the Veteran and the appellant have in fact been estranged for several years.  It is not contested by either party that the Veteran has not contributed to the appellant's monthly support for several years.

The October 2012 AOJ apportionment decision reflects that the Veteran's sole income is his monthly nonservice-connected pension of $834.00.  The appellant's monthly income of $758.00 derived from two payments from the Social Security Administration.  The $200.00 per month from the Veteran's benefits for D.W. brings her total monthly income to $958.00.  The decision determined that the Veteran's monthly expenses exceeded his monthly income by $273.55; and, the appellant's monthly expenses exceeded her monthly income by $737.00.

The Board has considered the appellant's statements, and regrets her financial straits.  However, fundamentally, VA must not apportion the benefits of veterans where this could cause them undue financial hardship.  Although both parties have a negative monthly balance, it is sufficient to note that any additional apportionment of the Veteran's monthly pension payment would increase his monthly deficit.  Therefore, no reasonable apportionment can be made to the appellant without causing undue financial hardship to the Veteran.  Accordingly, the appeal is denied.


ORDER

Entitlement to an apportionment of the Veteran's nonservice-connected pension is denied.




______________________________________________
REBECCA N. POULSON
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs