Citation Nr: 1802187 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-10 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to an apportionment of the Veteran's compensation benefits on behalf of the Appellant and Veteran's child, T.S. ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1989 to November 1991. The Appellant is the mother of the Veteran's child, T.S. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2012 determination issued by the Department of Veterans Affairs (VA) Regional Office in Des Moines, Iowa (RO), which denied the Appellant's claim for apportionment. This is a contested claim. FINDINGS OF FACTS 1. The Veteran and the Appellant married on February [REDACTED], 1993. 2. The Veteran and Appellant have one child in common, T.S., born on December [REDACTED], 1993. 3. At the time of the Appellant's claim of entitlement to apportionment and prior to the child's age of maturity, December [REDACTED], 2011, the Veteran was not receiving any VA benefits. 4. The Veteran received VA compensation benefits after his son's eighteenth birthday. CONCLUSION OF LAW The criteria for an apportionment of the Veteran's compensation benefits have not been met. 38 U.S.C. §§ 101(4)(A), 5307 (2012); 38 C.F.R. §§ 3.4, 3.204, 3.210(a), 3.450, 3.452, 3.458 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Facts The Veteran and the Appellant were married on February [REDACTED], 1993. Their child, T.S., was born on December [REDACTED], 1993. The parties remained married until September 2009. On September [REDACTED], 2009, the Iowa District Court for Black Hawk County issued a dissolution decree, dissolving the marriage of the Appellant and the Veteran. On November 10, 2011, the Appellant contacted the VA to initiate a claim for an apportionment of the Veteran's disability compensation benefits on behalf of T.S. As early as February 2008, the Appellant asserted that the Veteran had not been paying child support. Before the Appellant filed the claim that is currently on appeal, the Appellant requested apportionment with the RO; however, the RO denied the requests because the Veteran was not in receipt of any VA benefits. An August 2010 Income Withholding for Support statement from Iowa Department of Human Services documented the Veteran's current child support obligation in the amount $267.00 per month, his past-due child support obligation in the amount of $53.40 per month, and his total obligation in the amount of $320.40 per month. Following the Veteran's March 2008 claim for compensation benefits, the RO, in a May 2012 rating decision, granted entitlement to service connection for the following disabilities: (1) posttraumatic stress disorder, cognitive disorder, mood disorder, and alcohol dependence, in remission, assigning a 100 percent disability rating effective March 27, 2008; (2) stroke, assigning a noncompensable disability rating effective March 27, 2008; (3) seizure disorder, assigning a 20 percent disability rating effective March 27, 2008; (4) gastroesophageal reflux disorder (GERD), assigning a 10 percent disability rating effective March 27, 2008; and (5) irritable bowel syndrome assigning a noncompensable disability rating effective March 27, 2008. In addition, the RO granted Dependents' Educational Assistance pursuant to 38 U.S.C. Chapter 35 effective March 27, 2008. The Veteran responded to the Appellant's claim for apportionment in December 2013 correspondence. There, the Veteran contended that T.S. was no longer a dependent or in school, and as such his VA benefits should not be apportioned. While the Veteran acknowledged that he was delinquent in child support payments, he stated that he paid $70.00 per month for child support. In addition, the Veteran objected to paying $150.00 per month for child support. II. Legal Framework "'Statutory interpretation begins with the language of the statute, the plain meaning of which we derive from its text and structure.'" Myore v. Nicholson, 489 F.3d 1207, 1211 (Fed. Cir. 2007) (quoting McEntee v. M.S.P.B., 404 F.3d 1320, 1328 (Fed. Cir. 2005); Gardner v. Derwinski, 1 Vet. App. 584, 586 (1991) ("Determining a statute's plain meaning requires examining the specific language at issue and the overall structure of the statute." (citing Bethesda Hosp. Ass'n v. Bowen, 485 U.S. 399, 403-05 (1998))), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994). Compensation benefits may be apportioned on behalf of a veteran's spouse, child(ren), or dependent parents when certain conditions are met. 38 U.S.C. § 5307. "All or any part of the . . . compensation . . . payable on the amount of any Veteran may be apportioned . . ." if the Veteran is not residing with his or her spouse or if his or her children are not residing with the Veteran and the Veteran is not reasonably discharging his responsibility for the spouse's or the children's support. See 38 C.F.R. § 3.450. The United States Court of Appeals for Veterans Claims (Court) has held that it is not necessary for the claimant to establish the existence of hardship in order to obtain an apportionment under § 3.450. See Hall v. Brown, 5 Vet. App. 294 (1993). For VA purposes, a dependent "child" is defined as a person who is unmarried, under the age of 18 years. 38 U.S.C. § 101(4)(A). Generally, the effective date of an award is date of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 3.400 (2017). In apportionment claims, the effective date is "in accordance with facts found." See 38 C.F.R. § 3.400(e) (2017). III. Analysis At the time the Appellant filed the claim for an apportionment on behalf of T.S., T.S. was a "child" for purposes of 38 U.S.C. § 101(4)(A). The plain language of 38 U.S.C. § 101(4)(A) defines a child as an unmarried individual under the age of eighteen. Here, T.S. was born on December [REDACTED], 1993 and he was under the age of eighteen at the time VA received the claim. Hence, T.S. would be eligible for an apportionment of any benefits payable on the Veteran's account before his eighteenth birthday. However, prior to T.S. turning the age of eighteen, the Veteran was not receiving any VA benefits. In other words, there were no compensation benefits payable to the Veteran when T.S. was eligible for apportionment. See 38 C.F.R. § 3.450(a)(1). Still, the Appellant maintains that T.S. is entitled to apportionment of retroactive compensation benefits that the Veteran received in May 2012. In the May 2012 rating decision, the RO granted service connection for several disabilities and awarded compensation benefits to the Veteran, effective March 27, 2008, as described above. When the RO issued the May 2012 rating decision, T.S. was over the age of eighteen and no longer qualified as an apportionment beneficiary. 38 U.S.C. § 101(4)(A). While the effective date of the retroactive benefits is earlier than T.S.'s eighteenth birthday, the Veteran was not actually in receipt of any VA disability compensation benefits until after T.S. reached the age of maturity. See 38 C.F.R. § 3.450(a)(1). In addition, the record reveals that the Veteran did not file a declaration of status of dependents for T.S., which supports the Veteran's position that he did not intend to apportion his VA benefits. Accordingly, apportionment of the Veteran's VA benefits is not warranted. The Board is sympathetic to the Appellant and T.S. The Board is, however, bound by the applicable law and regulations and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104(c) (2012). No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress. Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). ORDER An apportionment of the Veteran's disability compensation benefits on behalf of T.S. is denied. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs