Citation Nr: 18141089 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 11-21 168A DATE: October 9, 2018 ORDER Entitlement to an apportionment of the Veteran’s VA disability compensation benefits is denied. (The Veteran’s appeal of the issue of entitlement to additional dependency allowance for E.L.M. will be addressed in a separate Board decision.) FINDINGS OF FACT The Appellant was not a dependent of the Veteran at the time she filed her July 2010 informal apportionment claim due to her graduation from a bachelor’s degree program in May 2010. The Veteran’s VA disability compensation award has been subject to full recoupment since he was granted entitlement to benefits under 38 U.S.C. § 1151 and will continue to be subject to full recoupment until approximately 2035 due to a $500,000.00 settlement he entered with VA to settle a claim under the Federal Tort Claim Act. CONCLUSION OF LAW The criteria for an apportionment of the Veteran’s VA disability compensation benefits have not been met. 38 U.S.C. § 5307 (2012); 38 C.F.R. §§ 3.450, 3.451 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION According to VA law, all or part of a veteran’s disability compensation benefits may be apportioned on behalf of his or her dependents if the veteran is not residing with his or her dependents and is not reasonably discharging his or her responsibility for support, otherwise known as general apportionment. 38 U.S.C. § 5307(a)(2); 38 C.F.R. § 3.450(a)(1)(ii). VA regulations also provide for a special apportionment of disability compensation benefits between the veteran and his or her dependents on the basis of the facts in the individual case where hardship is shown to exist, as long as it does not cause undue hardship to the other persons in interest. 38 C.F.R. § 3.451. Here, the record reflects the Appellant was not a dependent of the Veteran at the time she filed her July 2010 informal apportionment claim. On July 22, 2010, VA received a VA 21-674 (Record of School Attendance) signed by the Appellant. The Board refers to this as an informal claim because VA Form 21-0788 (Information Regarding Apportionment of Beneficiary’s Award) is typically used to file an apportionment claim. Nevertheless, the Agency of Original Jurisdiction (AOJ) construed the Appellant’s July 2010 submission as an apportionment claim, and the Board will not disturb the AOJ’s finding. However, the Appellant’s reports of school attendance show she graduated from a bachelor’s degree program at the New School in New York, New York, in May 2010. The Appellant was born in July 1988. Thus, in July 2010, she was not a dependent of the Veteran because she was more than 18 years of age and not enrolled in a course of instruction at an educational institution. See 38 U.S.C. § 101 (4)(A); 38 C.F.R. § 3.57. Additionally, the record shows the Veteran’s VA disability compensation award has been subject to full recoupment since he was granted entitlement to benefits under 38 U.S.C. § 1151 and will continue to be subject to full recoupment until approximately 2035 due to a $500,000.00 settlement he entered with VA to settle a claim under the Federal Tort Claim Act (FTCA). Therefore, even if the Appellant had standing to seek an apportionment, there would be no benefits to apportion due to the full recoupment of the Veteran’s award. The Board acknowledges much of the parties’ contentions in this appeal stem from a belief that E.L.M. is entitled to some form of educational assistance due to the Veteran’s entitlement to VA disability compensation. The Board notes E.L.M. does not qualify for Dependents’ Education Assistance (DEA) benefits because the Veteran is not considered to be permanently and totally disabled due to a service-connected disability. VA has required the submission of VA Forms 21-674 (Record of School Attendance) to establish entitlement to dependency allowance for E.L.M. during periods of school enrollment after her 18th birthday up until her 23rd birthday, not for the purpose of establishing entitlement to educational assistance. Although the Veteran has not received payment of the dependency allowance due to the recoupment of his award, he is receiving credit for the dependency allowance against the balance of his FTCA settlement. The Board recognizes there is a high likelihood that the parties’ erroneous belief that E.L.M. is entitled to educational assistance may have stemmed from inaccurate information provided by a VA employee, but this does not give rise to entitlement to the benefit sought. See Harvey v. Brown, 6 Vet. App. 416 (1994) (holding the remedy for a VA employee providing inaccurate information regarding entitlement to educational benefits is not the award of benefits). In sum, the Board finds the Appellant did not have standing to seek an apportionment of the Veteran’s VA disability compensation benefits at the time she filed her July 2010 informal apportionment claim because she no longer qualified as a dependent of the Veteran after she graduated from a bachelor’s degree program in May 2010. Further, even if she had standing to seek an apportionment, there were no benefits payable at that time or for the foreseeable future due to the recoupment of the Veteran’s award as a result of his FTCA settlement. Thus, entitlement to an apportionment of the Veteran’s VA disability compensation benefits must be denied. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel