Citation Nr: 1756874 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-03 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an apportionment of the Veteran's service-connected compensation benefits in favor of the appellant. ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The appellant is the ex-spouse of the Veteran who served on active duty from September 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) from a September 2012 decision of the Columbia, South Carolina Regional Office (RO) of the Department of Veterans' Affairs (VA). In July 2015, the case was remanded for further development. FINDINGS OF FACT 1. The appellant and the Veteran were divorced in June 2003 and by that time all of the appellant's children were over the age of majority. 2. The appellant filed for apportionment of the Veteran's compensation benefits in May 2012. CONCLUSION OF LAW The criteria for apportionment of the Veteran's VA compensation benefits are not met. 38 U.S.C. §§ 101, 5307 (West 2014); 38 C.F.R. §§ 3.1, 3.50, 3.450, 3.451, 3.458 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) redefined VA's duty to assist an appellant in the development of a claim. 38 U.S.C.A. § 5100 to 5107; 38 C.F.R. §§ 3.156 (a), 3.159, 3.326(a). An apportionment decision involves deciding how existing benefits are to be paid and the VCAA does not apply to decisions regarding the manner in which benefits are paid. Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). Thus, the VCAA is not applicable to this claim and no further discussion of the duty to notify or assist is necessary. Nevertheless, an apportionment claim is "contested." Thus, it is subject to the special procedural regulations set forth in 38 C.F.R. §§ 19.100, 19.101, and 19.102. Pursuant to the July 2015 remand, the applicable contested claims procedures were followed in this case. The RO provided the parties, the appellant and the Veteran, with notices and determinations related to the contested claim, and advised both parties of the applicable law and regulations. The Board also notes that the instant appeal turns on a matter of law and not on the underlying facts or development of the facts. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). Thus, the Board finds that any deficiency in VA's notice or development action in this case is harmless error. II. Analysis A veteran's benefits can potentially be apportioned if the veteran is not residing with his spouse, and a claim for apportionment is filed for or on behalf of the spouse and/or his minor children. 38 C.F.R. §§ 3.450, 3.452 (a). For the purpose of determining entitlement benefits, the term "child of the Veteran" means an unmarried person who is a legitimate child who is under the age of 18 years, or who, before reaching the age of 18 years, became permanently incapable of self-support, or who, 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.A. § 101 (4)(A); 38 C.F.R. § 3.57. Upon a divorce from a Veteran, the ex-spouse loses his or her status as a Veteran's spouse, including any potential entitlement to an apportionment of VA disability compensation by VA. See 38 U.S.C.A. §§ 101 (31), 5307 (West 2014); 38 C.F.R. §§ 3.1 (j), 3.50(a), 3.450, 3.451, 3.452. Therefore, if the Veteran and the appellant are, in fact, divorced, the appellant would be no longer entitled to a VA apportionment of the Veteran's disability compensation benefits for herself under any circumstances, effective the date of the divorce. A June 2000 separation agreement shows that the settlement agreement pertaining to the separation of the appellant and the Veteran was approved by the Superior Court of Richmond County, Georgia. The separation agreement indicates that the two children born of the marriage were over the age of majority. The separation agreement also indicates that the Veteran would pay appellant $800 every other week for support. Additionally, the agreement indicates that the $800 would be deducted from the Veteran's wages and could also be deducted from state or federal disability compensation benefits. A Florence County South Carolina divorce decree shows that the Veteran and the appellant were divorced in June 2003. There is no indication or allegation that they have subsequently remarried each other. In May 2012, the appellant submitted a claim for apportionment of the Veteran's VA compensation benefits. She noted that the June 2000 settlement agreement allowed for her to receive "a portion of his compensation, pension or any other disability retirement." The above summarized evidence shows that the appellant is not eligible for any apportionment of the Veteran's VA disability benefits by VA. In this regard, the appellant and the Veteran were divorced almost 9 years prior to her filing her claim for apportionment and as a matter of law, an ex-spouse is not eligible for a VA ordered apportionment of VA disability compensation benefits. Similarly, the June 2000 settlement agreement shows that the children of the Veteran and the appellant had already reached the age of majority at that point. Consequently, as they were already adults at the time of the appellant's May 2012 apportionment claim, they also would not be eligible for apportionment of the Veteran's VA disability compensation benefits. The appellant has essentially asserted that because the June 2000 settlement agreement allowed for monies to potentially be deducted from the Veteran's federal disability benefits, VA should award her an apportionment of the Veteran's VA disability compensation benefits. However, the settlement agreement is a legal document approved by a wholly different legal system (i.e. the state/county system). In contrast, the Board only has the authority to consider the appellant's current appeal for an apportionment under the federal VA benefits system. As noted above, VA regulations do not allow for VA to apportion the Veteran's disability compensation benefits to provide support for an ex-spouse. If the appellant believes that the Veteran is not meeting his support obligations under the June 2000 agreement, the June 2003 divorce decree, or any subsequent state/county legal determination, she must address these concerns with the appropriate state/county authorities. As the appellant is an ex-spouse and as the children of the appellant and the Veteran have already reached adulthood, there is no legal basis for VA to award an apportionment of the Veteran's VA disability compensation benefits in this case. See 38 U.S.C.A. §§ 101 (31), 5307 (West 2014); 38 C.F.R. §§ 3.1 (j), 3.50(a), 3.450, 3.451, 3.452. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to an apportionment of the Veteran's service-connected compensation benefits in favor of the appellant is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs