Citation Nr: 18143737 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 18-07 825 DATE: October 22, 2018 ORDER 1. Entitlement to apportionment of the Veteran’s VA disability compensation payments withheld due to his incarceration for the support of the Veteran’s mother, E.L., is denied. 2. Entitlement to apportionment of the Veteran’s VA disability compensation payments withheld due to his incarceration for the support of the Veteran’s child, K.Y., is denied. FINDINGS OF FACT 1. The Veteran was incarcerated from May [redacted], 2012 to August [redacted], 2017. 2. The Veteran filed his claim for apportionment on behalf of his mother, E.L., and daughter, K.Y., on March [redacted], 2015. 3. For the time period from March [redacted], 2015, to August [redacted], 2017, the date that the Veteran was released from prison, the evidence does not establish the dependency of E.L. 4. For the time period from March [redacted], 2015, the evidence does not establish the dependency of K.Y.   CONCLUSIONS OF LAW 1. The criteria for apportionment to E.L. of the Veteran’s VA benefits have not been met. 38 U.S.C. §§ 5307, 5313; 38 C.F.R. §§ 3.450, 3.665. 2. The criteria for apportionment to K.Y. of the Veteran’s VA benefits have not been met. 38 U.S.C. §§ 5307, 5313; 38 C.F.R. §§ 3.450, 3.665. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1990 to May 1991; as well as active duty for training from April 1985 to September 1985. He was incarcerated from May [redacted], 2012 to August [redacted], 2017. In April 2018, the Veteran testified at a videoconference hearing. A transcript of that hearing is of record. (As the issues of entitlement to a waiver of overpayment of $3,654.28 as well as requests to reopen claims for Bell’s palsy, posttraumatic stress disorder (PTSD), and joint and bone pain; entitlement to service connection for PTSD, fatigue, right eye disability, bilateral hearing loss, headache disability, traumatic brain injury (TBI); entitlement to higher ratings for service-connected right thumb disability and service-connected anxiety disorder; and entitlement to a total disability evaluation based on individual unemployability due to service connected disabilities (TDIU) are based on completely different law and facts, they are the subjects of separate decisions. See BVA Directive 8430, paragraph 14(c)). Apportionment The Veteran has requested apportionment of his disability benefits on behalf of his mother and daughter, during a period of incarceration, May [redacted], 2012 to August [redacted], 2017. As to be explained in more detail below, because relevant evidence requested by VA has not been submitted, the claim is denied. The statutory authority for apportionment of VA compensation or pension, as in a case such as this appeal, is found at 38 U.S.C. §§ 5307, 5313(b); 38 C.F.R. § 3.450. Any person who is entitled to VA compensation and who is incarcerated in a Federal, State or local penal institution for a period in excess of 60 days for conviction of a felony, and who has service-connected disabilities rated at 20 percent of more, shall be paid not more than an amount equivalent to a 10 percent disability evaluation for the period beginning on the 61st day of such incarceration and ending on the day such incarceration ends. 38 U.S.C. § 5313 (a)(1)(A); 38 C.F.R. § 3.665 (a), (d). However, all or any part of the compensation not paid to a veteran by reason of subsection (a) may, as appropriate in an individual case, be apportioned under the same terms and conditions provided under 38 U.S.C. § 5307. 38 U.S.C. § 5313 (b)(1). All or part of the compensation not paid to an incarcerated veteran may be apportioned to the veteran’s spouse, child or children and dependent parents on the basis of individual need. In determining individual need, consideration shall be given to such factors as the apportionee claimant’s income and living expenses, the amount of compensation available to be apportioned, the needs and living expenses of other apportionee claimants as well as any special needs, if any, of all apportionee claimants. 38 C.F.R. § 3.665 (e). A child is defined for VA purposes as a person who is unmarried and — (i) who is under the age of eighteen years; (ii) who, before attaining the age of eighteen years, became permanently incapable of self-support; or (iii) who, after attaining the age of eighteen years and until completion of education or training (but not after attaining the age of twenty-three years), is pursuing a course of instruction at an approved educational institution; and who is a legitimate child, a legally adopted child, a stepchild who is a member of a veteran’s household or was a member at the time of the veteran’s death. See 38 U.S.C. § 101 (4)(A); 38 C.F.R. § 3.57; O’Brien v. Wilkie, 30 Vet. App. 21 (2018). The provisions of 38 C.F.R. § 3.250 govern whether a parent can be classified as a dependent parent. This regulation provides that conclusive dependency of a parent (other than one who is residing in a foreign country) will be held to exist where the monthly income does not exceed: (1) $400 for a mother or father not living together; (2) $660 for a mother and father, or remarried parent and spouse, living together: (3) $185 for each additional “member of the family” as defined in paragraph (b)(2). 38 C.F.R. § 3.250 (a)(1). Where the income exceeds the monthly amounts stated in paragraph (a)(1) of this section, dependency will be determined on the facts in the individual case under the principles outlined in paragraph (b) of this section. In such cases, dependency will not be held to exist if it is reasonable that some part of the corpus of the claimant’s estate be consumed for his or her maintenance. 38 C.F.R. § 3.250 (a)(2). Dependency will be held to exist if the father or mother of the veteran does not have an income sufficient to provide reasonable maintenance for such father or mother and members of his or her family under legal age and for dependent adult members of the family if the dependency of such adult member results from mental or physical incapacity. 38 C.F.R. § 3.250 (b). The term “reasonable maintenance” includes not only housing, food, clothing, and medical care sufficient to sustain life, but such items beyond the bare necessities as well as other requirements reasonably necessary to provide those conveniences and comforts of living suitable to and consistent with the parents’ reasonable mode of life. 38 C.F.R. § 3.250 (b)(1). On March [redacted], 2015, the Veteran filed a VA 21-0788, Information Regarding Apportionment of Beneficiary Award, dated and signed by the Veteran on March 1, 2015, in favor of his mother, E.L., as well as his daughter, K.Y. At that time, the Veteran had been in receipt of a 20 percent disability rating since January 2006; and he had been incarcerated since May [redacted], 2012. The VA Form 21-0788 provided the following information regarding the Veteran’s mother’s and daughter’s income, net worth, and living expenses. It was reported that the Veteran’s mother received $900 per month in Social Security income and paid out $450 for rent; $150 for food; $200 for utilities; $50 for telephone, $25 for clothing; $30 for medical expenses, $30.00 for transportation expenses; and $30 for toiletries/personal hygiene products. It was noted that the Veteran’s daughter received no income and paid out $100 for rent; $100 for food; $50 for telephone, $25 for clothing, $50 for school expenses, $30 for transportation expenses, and $30 for toiletries/personal hygiene products. In a statement received a few days later, the Veteran stated, “The Veterans Administration has started to take my disability monies which are helping me to pay rent where my family lives and my family is in a[n] economic dire situation and has been for quite many years ...” The Veteran also stated, “My family and I need much more assistance and not my disability payments taken away in order to survive as my mother is retired and on Social Security and my daughter is a student and trying to get an education …” In a statement received in July 2015 with respect to another issue, the Veteran stated that his disability payment of $250 was being used by his family for shelter, food, clothing, school, and medicine; and that the decision to stop his disability payments was already causing serious detrimental economic harm and was going to cause his daughter and elderly mother to be homeless and keep his daughter from going to school. In October 2015, the Veteran submitted VA Form 21-0845, Authorization to Disclose Personal Information to a Third Party, signed by him and dated September 15, 2015, listing E.L. and his aunt. The Veteran noted only one address in Phoenix. On his VA Form 9, Appeal to the Board of Veterans’ Appeals, received in October 2015, the Veteran listed his mother’s address as the same address noted on VA Form 21-0845. In a statement received in January 2016, the Veteran noted that his mother was recovering in the hospital from an operation. In a letter from VA dated March 22, 2016, the Veteran was informed that VA was working on his claim for apportionment for his mother and daughter and requested the following evidence: a copy of his birth certificate or other record showing the name of his mother, completion of VA Form 21-509, his mother’s Social Security number and date of birth, his mother’s address, evidence of his payment of $250 per month for support of his mother. It was noted that his mother’s access to his bank account did not constitute support. The letter stated in bold letters that it was very important for his dependents to provide the following: The number of people in their household and their relationship to the Veteran; an itemized list of the monthly income from all sources, showing each source, for each individual in the household; a list of property owned; an itemized list of the average monthly household expense to include each person in the household. The Veteran was advised that preparation of the enclosed VA Form 21-0788 needed to be signed by his mother and daughter. The Veteran was also advised that he needed to provide a copy of his daughter’s birth certificate, his daughter’s Social Security number, his daughter’s address, and evidence that she was in school since March [redacted], 2015, the date he filed his claim. In a letter from the Veteran to his representative dated in March 2016, he noted that his mother would be unable to go to the VA office to sign it because she was very sick and unable to go anywhere. In April 2016, a VA Form 21-0788 was received which provided information regarding the Veteran’s mother’s and daughter’s income, net worth, and living expenses. It was reported that the Veteran’s mother received $800 per month in Social Security income and paid out $450 for rent; $150 for food; $200 for utilities; $100 for telephone, $50 for clothing; $25 for medical expenses, $40 for transportation expenses; and $25 for toiletries/personal hygiene products. It was noted that the Veteran’s daughter received $1100 per month in employment income and paid out $1100 for rent; $200 for food; $100 for utilities, $75 for telephone, $50 for clothing, $25 for medical expenses; $100 for school expenses, $400 for car payment, and $95 for toiletries/personal hygiene products. In April 2016, a VA Form 21-509, Statement of Dependency of Parent(s) was received which noted $175 for home repairs and phone bill. The Veteran listed his mother’s address as the same address noted on previous forms (VA Form 21-0845 and VA Form 21-0845). In a letter dated April 7, 2016, the Veteran’s mother, E.L., stated that she was the mother of the Veteran and that they were in desperate need of the Veteran’s disability payment which had been a source of income that they depended upon to pay bills such as rent, school expenses, food, and the Veteran’s necessities while he was in prison such as hygiene, tobacco, television, and shoes. She listed the same address as noted on the prior completed forms submitted by the Veteran. In June 2016, VA received the Veteran’s birth certificate. In June 2016, another VA Form 21-0788 was received which provided the following information regarding the Veteran’s mother’s income, net worth, and living expenses. It was reported that the Veteran’s mother received $900 per month in Social Security income and paid out $450 for rent; $150 for food; $200 for utilities; $50 for telephone, $25 for clothing; $30 for medical expenses, $30 for transportation expenses; and $35 for toiletries/personal hygiene products. It was noted that the Veteran’s daughter received no income and paid out $100 for rent; $100 for food; $50 for telephone, $25 for clothing, $50 for school expenses, $30 for transportation, and $30 for toiletries/personal hygiene products. In June 2016, another VA Form 21-509 was received which noted $80 for telephone and household products. In November 2017, VA issued a statement of the case which again noted the evidence needed in order to show the Veteran’s mother as a dependent as well as the information needed for K.Y. In May 2018, IRS Forms 1098-T for K.Y. were received which showed tuition summary reports from Northern Arizona University. This information indicates that tuition was billed during 2015 for Summer and Fall 2015. IRS Forms 1098-T for K.Y. indicate that she lives at an address different from E.L. VA also received an unofficial transcript for K.Y. After careful review of the record, the Board finds that the criteria for a special apportionment of the Veteran’s VA compensation to the Veteran’s mother, E.L., and K.Y., have not been met. In this case, the Board does not have the information necessary to grant the apportionment requests. Of the information requested in March 2016, VA has still not received information regarding the number of people in E.L.’s household and their relationship to the Veteran and their income; VA Forms 21-0788 signed by E.L. and K.Y.; and a copy of K.Y.’s birth certificate and her Social Security number. As discussed above, VA made attempts to obtain information necessary to adjudicate the claim, but the Board’s hands are tied. Absent that information, the evidence does not demonstrate that a hardship existed with respect to E.L. or that K.Y. is the Veteran’s daughter and is unable to conclude that a special apportionment for either E.L. or K.Y. is warranted. The duty to assist is not a one-way street; a claimant cannot remain passive when he or she has relevant information. See Wamhoff v. Brown, 8 Vet. App. 517 (1996); Wood v. Derwinski, 1 Vet. App. 190 (1991). (Continued on the next page)   Accordingly, the apportionments are denied. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Olson