Citation Nr: 1751763 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 15-10 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to apportionment of the Veteran's nonservice-connected pension benefits for the appellant. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to January 1971. The appellant advances a claim as the Veteran's spouse. This matter comes before the Board of Veterans' Appeals (Board) from a June 2013 decision, of the Department of Veterans Affairs (VA) Regional Office (RO), Pension Management Center, in St. Paul, Minnesota, which denied apportionment. Jurisdiction was subsequently transferred to the RO in Los Angeles, California, which originally certified the appeal to the Board in February 2016. The appellant testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) in October 2016. A hearing transcript is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran and appellant were married in February 1983. 2. From 2012 forward, the Veteran and appellant have not resided together and the Veteran has not provided support for appellant. 3. A financial need for apportionment on behalf of appellant has not been demonstrated and an apportionment would cause the Veteran undue hardship. CONCLUSION OF LAW The criteria for apportionment of the Veteran's nonservice-connected pension benefits are not met. 38 U.S.C.A. § 5307 (West 2014); 38 C.F.R. §§ 3.450, 3.451 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016). However, the United States Court of Appeals for Veterans Claims (Court) has held that the VCAA is not applicable in every case. In Barger v. Principi, 16 Vet. App. 132 (2002), the Court held that the VCAA, with its expanded duties, is not applicable to cases involving the waiver of recovery of overpayment claims, pointing out that the statute at issue in such cases was not found in Title 38, United States Code, Chapter 51 (that is, the laws changed by the VCAA). Similarly, the statute at issue in this matter is not found in Chapter 51 but, rather, in Chapter 53. Thus, the Board finds that VCAA is inapplicable to the claim on appeal. Notwithstanding, there are other notification and procedural requirements that attach to an apportionment claim. A claim for apportionment is a "contested claim" subject to special procedural regulations as set forth in 38 C.F.R. §§ 19.100-19.102; see also 38 C.F.R. §§ 20.500-20.504. Here, the record demonstrates that contested claim procedures have been followed in this appeal, and that there is no evidence or allegations that such procedures have not been followed. Also, it is noted that the claim was previously remanded by the Board for additional action. The requested actions were completed. Thus, the Board finds substantial compliance with the requirements articulated in the Board's prior remand decision. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board will address the merits of the claim. II. Apportionment Claims The appellant seeks apportionment of the Veteran's nonservice-connected pension benefits. The record shows that the Veteran and appellant married in February 1983. See Marriage Certificate (March 1997). The record does not include a final divorce decree; however, the Veteran reported in May 2012 that he was legally separated from his spouse (the appellant) and had last contributed to his spouse's support in August 2011. See VAF 21-0820 (July 2012). The record shows that the appellant was removed from the Veteran's award effective September 1, 2011. See VETSNET Award Print (June 2013). The record shows that an apportionment claim was established on September 18, 2012 based on receipt of VA Form 21-0788, "Information Regarding Appointment of Beneficiary's Award." See Correspondence (January 2013). A June 2013 apportionment decision reflects that special apportionment was denied. A June 2017 apportionment decision reflects that apportionment was denied under both the provisions of 38 C.F.R. § 3.450 and 38 C.F.R. § 3.451. The appellant testified in October 2016 that an apportionment of the Veteran's non-service connected pension benefits was warranted because she is homeless and without other financial resources apart from Social Security Administration benefits. She reported that she and the Veteran were not divorced, but had been separated since 2012. Legal Criteria VA regulations provide for two types of apportionments. A "general" apportionment may be paid under the circumstances set forth in 38 C.F.R. § 3.450. More specifically, 38 C.F.R. § 3.450(a)(1)(ii) provides an apportionment may be paid if the Veteran is not residing with his or her spouse, or if the Veteran's children are not residing with the Veteran and the Veteran is not reasonably discharging his or her responsibility for the spouse's or children's support. 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). The second type of apportionment is a "special" apportionment which may be paid under the circumstances set forth in 38 C.F.R. § 3.451. That regulation provides that, 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 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 dependents on whose behalf the apportionment is claimed, and the special needs of the Veteran, his dependents, and the apportionment claimants. Furthermore, 38 C.F.R. § 3.451 provides that apportionment of more than 50 percent of the Veteran's benefits is ordinarily considered to constitute undue hardship on him while apportionment of less than 20 percent of his or her benefits is ordinarily considered insufficient to constitute a reasonable amount for any apportionee. 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); 38 C.F.R. §§ 3.450, 3.451. Facts & Analysis Having carefully reviewed the evidence of record, the Board finds that the criteria for apportionment are not met under either 38 C.F.R. § 3.450 or 38 C.F.R. § 3.451. A financial need for apportionment on behalf of appellant has not been demonstrated and an apportionment would cause the Veteran undue hardship. The evidence shows that an apportionment of the Veterans VA benefits would not permit a reasonable amount to the apportionee. The evidence of record reflects that appellant and the Veteran have been living separate and apart since 2011-the appellant residing in California and the Veteran residing in Florida. Also, they have no dependent children (child L.K. was removed as a dependent in March 2011) and the Veteran has not contributed to appellant's support since August 2011. The Veteran has been classified as single in the award of pension benefits since 2012. The appellant reports apportionment is necessary due to financial need, including homelessness. The appellant asserts her only income is monthly Social Security Administration (SSA) payments. The appellant reported monthly expenses that exceed her income, but she has not provided evidence to establish how she is meeting the reported shortfall. The parties' income and expenses have been examined. The Veteran is receiving income from his VA pension only. His monthly award is $1,038.00 and there are no other sources of income. See VETSNET Award Print (June 2013). His monthly expenses were reported in 2011 as $1,143.00 when he was receiving VA pension payment of $1,291. See VA From 4-1837 (includes VA Form 5655) (June 2012). It is noted that his pension award was reduced thereafter because he notified VA that he was estranged from his spouse, who resided in California, and VA granted a waiver of overpayment of debt created when he no longer provided support to his spouse (the appellant). See DMC Waiver Grant Letter (July 2012). The appellant has income of $725.00 monthly from SSA and she reported $897.00 monthly expenses (creating a shortfall of $172.00)-the appellant has not explained how she meets the monthly shortfall in payment of expenses incurred. See SHARE Print Screens (July 2012) and VA Form 21-0788 (September 2012). At her October 2016 videoconference, the appellant reported that she was homeless and sick. She did not explain how her resources were spent or the cause of the shortfall. The Board has considered the effect of adding the appellant as a dependent of the spouse to his pension award. However, because of the appellant's SSA income, counting the appellant's income along with the Veteran's monthly VA award would reduce the Veteran's monthly award to $625.00-it is noted that pension is an income based benefit and the amount of the award varies depending on countable income. Apportionment is not warranted. It is clear that, if appellant was classified as the Veteran's dependent then appellant's income would be factored into the Veteran's total income and such would dramatically reduce his VA pension payment. Such would create a hardship. The appellant has not presented evidence showing that a reducing the Veteran's award by roughly 40% and then apportioning would not present hardship to the Veteran. Also, the Veteran's benefits are not apportionable because 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). As 38 C.F.R. § 3.451 informs, less than 20 percent of the Veteran's benefits would not provide a reasonable amount for any apportionee. Additionally, with regard to a special apportionment, hardship must be shown. See 38 C.F.R. § 3.451. Hardship contemplates an inability to pay for essentials such as food, clothing, shelter, or expenses. Such deprivations are not shown in this case. While appellant reported an inability to meet her monthly expenses, homelessness, and sickness, she met her monthly expenses without the Veteran's assistance since the parties' roughly 2012 and has not explained how she met the monthly shortfall in income to meet her reported expenses. There is no objective evidence of record that appellant has failed to meet her expenses or had financial hardship, such as, unpaid or delinquent bills. Further, as discussed above, considering appellant to be the Veteran's dependent would result in consideration of her income in the determination of VA pension benefits and the Veteran's VA pension payment would be drastically reduced. The Board has compared the dollar amount of monthly income received by the Veteran and appellant. The Veteran receives $1,075.00 and the appellant receives $725.00. The resources available to the appellant are now roughly 67% of those available to the Veteran, which is substantially more than she would be entitled to if she was added as a dependent and received an apportioned share of the VA pension award. Accordingly, apportionment is denied. 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 appellant and the Veteran simultaneously. Elias v. Brown, 10 Vet. App. 259, 263 (1997). ORDER Entitlement to apportionment of the Veteran's nonservice-connected pension benefits for the appellant is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs