Citation Nr: 1533310	
Decision Date: 08/05/15    Archive Date: 08/11/15

DOCKET NO.  14-08 096	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Entitlement to an apportionment of the Veteran's VA compensation benefits.

REPRESENTATION

Appellant (veteran) represented by:  Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The appellant

ATTORNEY FOR THE BOARD

Alexander Panio, Associate Counsel

INTRODUCTION

The Veteran served on active duty from August 1978 to December 1984 and from January 1990 to January 1994.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada.   

The appellant testified at a Board hearing before the undersigned Veterans Law Judge in May 2015.  A transcript of those proceedings is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

The total amount of the Veteran's payable VA benefits, totaling $129 per month, does not permit payment of a reasonable amount to any apportionee and any apportionment therof would cause undue hardship on the Veteran. 


CONCLUSION OF LAW

The criteria for an apportionment of the Veteran's compensation benefits have not been met. 38 U.S.C.A. § 5307 (West 2014); 38 C.F.R. §§ 3.4, 3.450, 3.451, 3.452, 3.458 (2014).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) do not apply to decisions regarding how benefits are to be distributed.  See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006); see also e.g., Lueras v. Principi, 18 Vet. App. 435 (2004); Barger v. Principi, 16 Vet. App. 132, 138 (2002) (the VCAA does not generally apply to matters arising under Chapter 53, Title 38, of the United States Code).

Claims for apportionment are considered 'simultaneously contested claims' because they involve questions pertaining to the allocation of available benefits between two or more parties.  The law includes special requirements for such claims. See 38 U.S.C.A. § 7105A; 38 C.F.R. § 19.100, 19.101, 19.102.  This includes notice to both parties of the statement of the case, as well as the content of the substantive appeal, under specified circumstances.  The file does not reflect that the Veteran received notice compliant with these requirements.  However, the appellant was provided with all necessary notice and information required by law, and as the Veteran is the prevailing party in this decision, any deficiencies in the contested claim procedures constitute harmless error.  In this regard, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  

Compensation benefits may be apportioned on behalf of a veteran's spouse under certain, specified circumstances.  38 U.S.C.A. § 5307.  A 'general' apportionment may be paid if the Veteran is not residing with his or her spouse and the Veteran is not reasonably discharging his responsibility for the spouse's support. 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 a 'general' apportionment.  See Hall v. Brown, 5 Vet. App. 294 (1993).  However, a Veteran's benefits will not be generally apportioned where the total benefit payable to the Veteran does not permit payment of a reasonable amount to any apportionee.  38 C.F.R. § 3.458(a).  The level of payment sufficient to warrant an apportionment is not otherwise defined.  However, the Board observes that VA law provides that an additional amount of compensation may be payable for a spouse only where a veteran is entitled to compensation at the rate of 30 percent or more. 38 U.S.C.A. § 1115; 38 C.F.R. § 3.4(b)(2).  The Board finds this to be a useful guideline for determining whether his benefit is high enough to permit a reasonable apportionment to the appellant, as his spouse.

Here, because the Veteran's compensation level has been at 10 percent throughout the appeal period, he has not been entitled to any additional compensation for a spouse.  Therefore, the Board finds that the total benefit payable to the Veteran does not permit payment of a reasonable amount to the appellant.  38 C.F.R. § 3.458(a).  

A 'special' apportionment may be paid in certain situations involving hardship.  See 38 C.F.R. § 3.451.  Specifically, without regard to any other provision regarding apportionment, where hardship is shown to exist, compensation benefits payable may be apportioned between the Veteran and his or her dependents on the basis of the facts of the individual case, as long as it does not cause undue hardship to the Veteran or other persons in interest.  Id.  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 or her dependents, and the apportionment claimants.  Id.  A 'special' apportionment of more than 50 percent of the 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 basis for any apportionee.  38 C.F.R. § 3.451.

The appellant states that the Veteran deserted her, and she claims hardship on the basis that she is unable to work, and has significant medical expenses.  She contends that she is entitled to a share of the Veteran's benefits as he is receiving both VA and Social Security Administration (SSA) disability benefits and she is without a source of income.  

The Veteran is currently in receipt of VA disability compensation benefits at a 10 percent rate, which amounts to $129 per month.  The Board notes that as recently as September 2012 the Veteran was considered to be homeless by VA and, according to the Veteran's Benefits Management System (VBMS), his status has not changed.  The Veteran's homeless status necessarily implies a significant financial difficulties and that even a 20 percent reduction of his payment would cause an undue hardship.  Thus, even though the appellant has documented hardship, the Board finds that an apportionment of the benefits in question would constitute an undue and impermissible hardship upon the Veteran.  Therefore, no apportionment can be granted at this time.  38 C.F.R. § 3.451.


ORDER

Entitlement to an apportionment of the Veteran's VA compensation benefits is denied.



____________________________________________
Steven D. Reiss 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs