Citation Nr: 1752701 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 08-06 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an apportionment of the Veteran's VA pension benefits on behalf of L.J.W., his son. ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1972 to January 1975 and from January 1975 to September 1975. The appellant in this case is the custodian (mother) of L.J.W., the Veteran's son. This case comes before the Board of Veterans Appeals (Board) on appeal from an April 2007 apportionment decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In the decision, the RO denied the appellant's claim for an apportioned share of the Veteran's VA benefits. This matter was before the Board in February 2015 when it was remanded for further development. As this is a contested claim, this Board decision must be issued to both the appellant and the Veteran. The appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant and Veteran if further action is required. REMAND Unfortunately, this matter must be remanded to the RO for additional development, to include obtaining income and expense information from the appellant and the Veteran for the entire period on appeal, as well as information concerning the child support payments the Veteran has made during the course of the appeal period and the amount of any unpaid child support still owed. By way of background, the appellant's claim for apportionment on behalf of the Veteran's minor son was received by VA in June 2006. The evidence of record from State of Washington Department of Social and Health Services, Division of Child Support (Washington State DCS) shows that in 2006 and 2007 the Veteran's monthly child support obligation was $189.10, and that he owed more than $8,000 in past due child support payments. According to the Apportionment Questionnaire completed by the appellant in September 2006, her monthly household income was $729 and the total expenses were $639. At that time, the appellant reported that the Veteran was not making his required monthly child support obligation, but instead would pay a lesser amount intermittently. This report is corroborated by a court order of contempt and documentation from Washington State DCS. The Apportionment Questionnaire completed by the Veteran in February 2007 showed that he received $1,077 per month in VA pension benefits and had total monthly living expenses of $730. Although he indicated that he was making child support payments at that time, documentation from Washington State DCS received in April 2007 and January 2011 show that he was not current on his child support payments. In its February 2015 remand, the Board noted that the financial information provided by the parties was out of date, and directed that additional financial information be obtained. In July 2015 and March 2016, the appellant submitted additional financial information, indicating that the Veteran was at that time paying $230 per month in child support. The most recent income and expense information, received from the appellant in March 2016 shows that the claimant's total monthly household income, including the child support payments made by the Veteran, was $1,135.00. The total monthly household expenses were $1,127.33. The Board notes that the Veteran did not submit any updated financial information, but other documentation in the claims file shows that he is currently receiving $1,314 in monthly pension benefits. Neither party has submitted any evidence showing what child support payments the Veteran has made between January 2007 and the present time, nor have they provided household income and expense information for the period between 2007 and 2015, or for the last year. The applicable law provides that all or any part of the pension or compensation pay payable on account of any veteran may be apportioned if the veteran's children are not residing with him and he is not reasonably discharging his responsibility for support. 38 U.S.C. § 5307(a)(2) (2012); 38 C.F.R. § 3.450(a)(1)(ii) (2017). No apportionment will be made where the veteran is providing for his dependents. 38 C.F.R. § 3.450(c). Additionally, where hardship is showing to exist, pension or compensation maybe specially apportioned between the veteran and his dependents on the basis of the facts in the individual case as long as it does not cause undue hardship to the veteran. 38 C.F.R. § 3.451. In determining the basis for special apportionment, consideration will be given to such factors as the amount of VA benefits payable; other resources and income of the veteran and those dependents in whose behalf apportionment is claimed; and the special needs of the veteran, his dependents, and the apportionment claimants. Id. The amount apportioned should generally be consistent with the total number of dependents involved. Id. Ordinarily, apportionment of more than 50 percent of the veteran's benefits would constitute undue hardship on him while apportionment of less than 20 percent of his benefits would not provide a reasonable amount for any apportionee. Id. A veteran's benefits will not be apportioned where the total benefit payable to the disabled person does not permit payment of a reasonable amount to any apportionee. 38 C.F.R. § 3.458(a) (2017). In light of the above, in order for the Board to render a decision in this matter, evidence must be received showing what child support payments have been made by the Veteran during the entire appeal period (June 2006 to the present) and the amount of child support still owed, as this information is needed to determine if the Veteran has been reasonably discharging his responsibility for support of the minor claimant. Additionally, income and expense information is needed from both parties for the years 2007 to 2015 and from 2017 forward, to determine whether hardship exists. As such, this matter must be remanded so that this information can be obtained. Accordingly, the case is REMANDED for the following action: 1. Ask the appellant and the Veteran to complete and return income and expense information for the period from 2007 to 2015. The appellant should also be asked to indicate whether there has been any change in the income and expense information provided in March 2016. 2. Undertake all development needed to obtain an accounting of the child support payments made by the Veteran during the entire appeal period (June 2006 to the present), including a statement of any outstanding child support owed. The Board notes that it may be possible for this information to be obtained from the State of Washington Department of Social and Health Services, Division of Child Support. Assistance should be provided to the appellant in obtaining this information in accordance with 38 C.F.R. § 3.159(c)(1). 3. After the development requested above has been completed to the extent possible, again review the entire record, with consideration of potential entitlement to a general apportionment under 38 C.F.R. § 3.450 or a special apportionment under 38 C.F.R. § 3.451 for any period of time between June 2006 and the present. If any benefit sought on appeal remains denied, the appellant and the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond. The appellant and Veteran have the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).