Citation Nr: 1752526 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-05 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an apportionment share of the Veteran's VA benefit for S.W., the Veteran's minor child. WITNESSES AT HEARING ON APPEAL Appellant and her mother ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran served on active duty from November 2003 to November 2006. The appellant is the mother and custodian of the Veteran's minor child S.W. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2011 decision by the Jackson, Mississippi, Regional Office (RO) denying the appellant's claim for an apportionment of the Veteran's benefits. In March 2017, the appellant testified before the undersigned Veterans Law Judge; a transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The Veteran is receiving a combined VA compensation rating of 100 percent for multiple service-connected disabilities. 2. The Veteran receives additional VA compensation for other dependent children. 3. The Veteran's dependent minor child S.W. is in the custody of the appellant. 4. The Veteran is not reasonably discharging his responsibility to support his minor child. CONCLUSION OF LAW The criteria for an apportionment of the Veteran's VA disability compensation benefits to the appellant on behalf of the Veteran's minor child, S.W., have been met. 38 U.S.C. § 5307 (2012); 38 C.F.R. §§ 3.450, 3.452 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The VCAA applies to "Claims, Effective Dates, and Payments" under Chapter 51 of Title 38, United States Code, but has generally not been found to apply to "Special Provisions Relating to Benefits" under Chapter 53 of Title 38, United States Code. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006); Lueras v. Principi, 18 Vet. App. 435 (2004) (Chapter 53 does not address the adjudication or granting of benefits as does Chapter 51); see also Barger v. Principi, 16 Vet. App. 132, 138 (2002). Thus, as apportionment is governed by Chapter 53, it does not appear that the VCAA applies to the instant claim. Even so, the Board notes that a claim for an apportionment is a "simultaneously contested claim" and is subject to special procedural regulations as set forth in 38 C.F.R. §§ 19.100, 19.101, 19.102 (2017). All interested parties are to be notified of the action taken by the Agency of Original Jurisdiction in such a claim, and of the rights and time limit for initiation of an appeal, as well as hearing and representation rights. 38 C.F.R. § 19.100. The Board notes that it appears that contested claim procedures have been followed in this appeal, and that there is neither evidence nor allegation that such procedures have not been followed. Both the Veteran and the appellant have been notified of all pertinent proceedings, as mandated by contested claim procedures. In particular, the March 2011 apportionment decision, the January 2014 Statement of the Case, and notification of the March 2017 hearing before the undersigned Veterans Law Judge were issued to both parties, with the parties receiving notice of the governing legal regulations, along with a specific explanation of the basis for the apportionment decision. II. Apportionment In this case, the appellant contends that the Veteran has not been discharging his responsibility to support his minor child and that an apportionment of his VA compensation benefits is, therefore, warranted. All or any part of VA compensation payable on account of any veteran may be apportioned, if his children are not in his custody, and he is not reasonably discharging his responsibility for his 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 appellant 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). However, notwithstanding the requirements for an apportionment, a "special apportionment" may be paid pursuant to 38 C.F.R. § 3.451 without regard to any other provision regarding apportionment where hardship is shown to exist. In such cases, compensation may be 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. A special apportionment is thus apparently meant to provide for a dependent in a situation in which the Veteran is reasonably discharging his responsibility for the support of his children, but special circumstances exist which warrant giving the dependents additional support. In this case, the Veteran receives a combined VA compensation rating of 100 percent for multiple service-connected disabilities. The evidence shows that the Veteran is the father of S.W., who resides with the appellant and apart from the Veteran. On a Status of Dependents Questionnaire, received in March 2010, the Veteran acknowledges that the appellant is the custodian of S.W. Effective April 1, 2009, the Chancery Court (Court) ordered the Veteran to pay monthly child support of $135 per month for S.W. In June 2011, the Court found the Veteran to be arrears of $2,565.00 for child support payments, levied a judgment against the Veteran of $3,065.00, and ordered that the Veteran pay $50 per month beginning July 2011. The Court also suspended the ongoing child support of $140 per month until the outcome of this claim before the Board was determined. In February 2012, the Veteran contacted VA to report that he was no longer paying child support for S.W. and wanted his minor child to receive $100.00 per month. In addition, a January 2013 statement documents the Veteran's payments towards child support between September 2008 and September 2011, which shows total arrears in the amount of $3,055.00. The question, then, is whether the Veteran is reasonably discharging his responsibility to support his minor child S.W. After reviewing the record, the Board finds that he is not. As stated above, in June 2011, the Court found the Veteran delinquent in his child support payments and levied a judgment against the Veteran of $3,065.00. Further, the Veteran reported that he stopped paying child support in February 2012. Since the Veteran is not reasonably discharging his responsibility to support his minor child, there is no need to consider a special apportionment. Although the Veteran is not reasonably discharging his responsibility to support his minor child, the record shows that he receives additional VA disability compensation for his other minor children. He only receives that money because of their status as his dependents. Therefore, since the Veteran has not been fulfilling his duty to pay child support, a general apportionment of his VA disability compensation in the amount of the additional disability compensation he receives for his minor child, S.W., is appropriate. ORDER An apportionment of the Veteran's VA compensation benefits in favor of the Veteran's minor child S.W. in the amount of the additional disability compensation the Veteran receives for her as his dependent is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs