Citation Nr: 1751549 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 10-18 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to apportionment of the Veteran's VA compensation benefits. REPRESENTATION Appellant/Claimant: Unrepresented Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patricia A. Talpins, Associate Counsel INTRODUCTION The Veteran had active service from June 1974 to June 1976. The Appellant/Claimant in this case is the mother of the Veteran's daughter, B.J., who was born in January 1997. In April 2008, the Appellant applied for an apportionment of the Veteran's disability benefits on behalf of B.J. This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2009 Special Apportionment Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York that denied the Appellant's apportionment request. Jurisdiction over the case was subsequently transferred to the RO in Columbia, South Carolina. The Appellant appealed the denial for apportionment. In March 2016, the Board remanded the above-referenced claim to the RO for the scheduling of a BVA Video Conference hearing requested by both parties. Both the Veteran and the Appellant were notified of the hearing, but neither appeared. As such, the Board views the requests for a BVA hearing as being withdrawn by both parties. For the record, this appeal was processed using the Veteran's Benefits Management System (VBMS) and Legacy Content Manager. FINDINGS OF FACT During the pendency of this appeal, an undue burden to the Veteran and other interested persons, including other dependent children, would have resulted from an apportioned share of his VA compensation benefits. CONCLUSION OF LAW The criteria for an apportionment of the Veteran's compensation benefits have not been met. 38 U.S.C. § 5307 (2012); 38 C.F.R. §§ 3.450, 3.451, 3.452, 3.458 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 C.F.R. §3.159. However, the VCAA does not apply to decisions regarding how benefits are to be distributed. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). Because an apportionment decision involves deciding how existing benefits are to be paid, under Sims, the VCAA is not applicable. For the record, the Board observes that VA's laws and regulations include special requirements for apportionment claims. See 38 U.S.C. § 7105A; 38 C.F.R. § 19.100, 19.101, 19.102. These include notice to both parties of the statement of the case and other notifications, as well as the content of the substantive appeal, under specified circumstances. As the notification requirements in this case appear to have been met, and the Appellant does not contend otherwise, the Board proceeds with a merits adjudication of the apportionment claim on appeal. Apportionment Under 38 U.S.C. § 5307, if a veteran's child is not in his custody, all or any part of the compensation payable on account of the veteran may be apportioned as may be prescribed by the Secretary of VA. See also 38 C.F.R. § 3.452 (a). For the purposes of establishing dependency status, the term "child" means an unmarried person who is a legitimate child; a child legally adopted before the age of 18 years; a stepchild who acquired that status before the age of 18 years and who is a member of the veteran's household at the time of the veteran's death; or an illegitimate child. In addition, the child must be someone who: (1) is under the age of 18 years; (2) before reaching the age of 18 years became permanently incapable of self-support; or (3) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4); 38 C.F.R. § 3.57(a). 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. Specifically, all or any part of the 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. § 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 such apportionment will be made where a veteran is providing for dependents. 38 C.F.R. § 3.450. In this case, it appears that during the pendency of this appeal, the Veteran made arrangements with the Appellant in regards to child support for B.J., and that he also provided other "monetary assistance" for his daughter. See September 2008 correspondence; February 2009 report of general information. Accordingly, it cannot be said that the Veteran has failed to reasonably discharge his responsibility for his daughter's support. See 38 U.S.C. § 5307(a)(2); 38 C.F.R. § 3.450(a)(1)(ii). As such, the requirements for a general apportionment are not met. See 38 C.F.R. § 3.450(a)(1)(ii). The second type of apportionment is a "special" apportionment. Under this type of apportionment, without regard to any other provisions 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. 38 C.F.R. § 3.451. 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 a 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. The special apportionment applies where a veteran is reasonably discharging his responsibility for the support of any claimant who might otherwise be entitled to a "general" apportionment, but special circumstances - such as an inability to pay for essentials such as food, clothing, shelter or medical expenses - exist which warrant giving dependents additional support. See, e.g., Vet. Reg. No. 6 (c), Instruction No. 2, VI (Oct. 1934); cf. Vet. Reg. No. 6 (c), 4 (June 1934). The Veteran is in receipt of a total disability rating based on individual unemployability (TDIU) with an effective date of September 1, 2005. Documents in the claims file include yearly employment questionnaires dated from 2008 to 2017 in which the Veteran certified that he had been unemployed for the preceding 12 months. In response to the Appellant's request for apportionment, the Veteran provided VA a list of his monthly expenses that included his monthly mortgage payment, medical insurance, utilities bills, car payment and credit card responsibilities that totaled approximately $4,500.00. At that time, he reported that he lived with his wife (who was unemployed) and two children, therefore supporting a family of 4. Although not providing a specific monetary amount, the Veteran indicated that he was also paying child support for B.J. See May 2009 statement in support. According to "award print" documents in the claims file, the Veteran's monthly compensation award between 2009 and 2015 was approximately $3,000.00. See award prints. In the July 2009 Apportionment Decision on appeal, the Veteran's income was listed as his VA monthly compensation as $3,222.00 and $930.00 from Social Security Administration (SSA) disability, resulting in a total monthly income of $4,152.00. The Veteran's monthly expenses were reported as $4,251.00. Thus, the Veteran had a negative income of $99.00 after his expenses were paid at the time the comparison was made. The Appellant provided a list of expenses to VA in August 2009, which set forth costs that included a yearly allowance for clothes, food and rent of approximately $2,300.00 (i.e., approximately $200.00 a month) and monthly utility expenses of approximately $471.00. Thus, the Appellant reported her total monthly expenses as being approximately $671.00 a month. In terms of income, the Appellant notified VA that she received $104.00 a month from SSA for her daughter B.J. and $674.00 from SSA for her young son, who was disabled. She did not provide any additional information as to any other income she received. Based solely on the Appellant's children's' SSA awards, the Appellant's income was calculated by the RO to be $774.00 a month, resulting in her monthly positive income being approximately $100.00 a month after her income and expenses were considered together. After considering the above-referenced evidence, the Board has no choice to find that a request for a special apportionment of the Veteran's compensation benefits is not warranted in this case on the basis that (1) the Appellant has not demonstrated a financial need, as her monthly income exceeds (if only slightly) her reported expenses and (2) in light of the Veteran's income and expenses, granting the Appellant a special apportionment of the Veteran's VA compensation would place an undue burden upon him. In response to VA's finding that the Appellant has not shown financial need, the Appellant argues that disability benefits for her disabled young son from SSA should not be included as income because these funds are specifically provided to help care for her son and should not be used to "take care of" B.J. See statement with VA Form 9. Although the Board is sympathetic to the Appellant's position, and her overall financial situation, VA regulations provide that in determining the basis for special apportionment, consideration will be given to factors that include "other resources and income" of those dependents in whose behalf apportionment is claimed; and special needs of the veteran, his or her dependents, and the apportionment claimants. See 38 C.F.R. § 3.451. The Board observes that for VA pension purposes, SSA disability benefits are included as countable income. See, e.g., 38 C.F.R. § 3.271(g). The Board sees no reason why such benefits would be considered as income in relationship to the granting of a VSA pension and not be considered income in terms of claims of apportionment. Additionally, as mentioned previously, VA's applicable regulations provide for consideration not only for the Appellant's needs but also those of the Veteran. See 38 C.F.R. § 3.451. As discussed above, the role of VA is to make a determination as to whether an apportionment would constitute a financial hardship to both the appellant and the veteran, based on the reported income and expenses. And here, the Board finds that (with respect to both a general and special apportionment), given the reported income and expenses of the Veteran, an apportionment from his VA benefits would result in undue financial hardship for him, seriously undermining his ability to afford the basic necessities of life and provide for his family, including his spouse and his 2 other children, who reside with him and have been dependents for the period on appeal. Id. Accordingly, given the evidence in the current record on appeal, the Board finds that an apportionment of the Veteran's compensation benefits is not warranted in this case and the claim is denied. 38 U.S.C. § 5307; 38 C.F.R. §§ 3.450, 3.451. In making this determination, the Board observes for the record that the "benefit-of-the-doubt" rule does not apply because the benefit of the doubt cannot be given to both an appellant and a veteran in simultaneously contested claims. See Elias v. Brown, 10 Vet. App. 259, 263 (1997). ORDER Entitlement to an apportionment of the Veteran's compensation benefits is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs