Citation Nr: 18145764 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 14-30 176 DATE: October 30, 2018 ORDER The decision to terminate the apportionment of the Veteran’s VA compensation benefits to the appellant on behalf of the Veteran’s dependent children was proper. FINDINGS OF FACT 1. The appellant is the mother and custodian of the Veteran’s three children. 2. Throughout the relevant period on appeal, the Veteran provided support for his three dependent children. 3. Throughout the relevant period on appeal, the appellant did not demonstrate financial hardship as her income generally exceeded her expenses. CONCLUSION OF LAW The decision to terminate the apportionment of the Veteran’s VA compensation benefits to the appellant on behalf of the Veteran’s dependent children was proper. 38 U.S.C. § 5307 (West 2014); 38 C.F.R. § 3.450, 3.451, 3.452, 3.453, 3.458, 3.503, 3.667 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1972 to May 1977, and from September 1989 to June 2004. The appellant is the mother and custodian of the Veteran’s three dependent children. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In May 2018, the Veteran was scheduled for a hearing before a member of the Board, but did not appear for the hearing. As such, the Veteran’s hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). Termination of apportionment The appellant asserts that the RO decision to terminate the apportionment of the Veteran’s VA compensation benefits to the appellant on behalf of the Veteran’s children was not proper. VA regulations provide for two types of apportionments. The first type is a “general” apportionment, which may be paid under the circumstances set forth in 38 C.F.R. § 3.450. More specifically, all or any part of the compensation payable on account of any Veteran may be apportioned if the Veteran is not residing with his spouse or children, and the Veteran is not reasonably discharging his responsibility for the spouse’s or children’s support. 38 U.S.C. § 5307(a)(2); 38 C.F.R. § 3.450(a)(1)(ii). No apportionment will be made where the Veteran is providing for his dependents. 38 C.F.R. § 3.450(c). It is not necessary for the claimant to establish the existence of hardship in order to obtain an apportionment under 38 C.F.R. § 3.450. See Hall v. Brown, 5 Vet. App. 294 (1993). The second type is a “special” apportionment. Under this type of apportionment, without regard to any other provision regarding apportionment, where hardship is shown to exist, compensation may be specially apportioned between the Veteran and his dependents on the basis of the facts of the individual case as long as it does not cause undue hardship to the other persons in interest. In determining the basis for special apportionment, consideration is to be given to such factors as the amount of VA benefits payable, other income and resources of the Veteran and those dependents in whose behalf the apportionment is claimed, and the special needs of the Veteran, his dependents, and the apportionment claimants. The amount apportioned should generally be consistent with the total number of dependents involved. Ordinarily, apportionment of more than 50 percent of the Veteran’s benefits would constitute undue hardship on him or her, while apportionment of less than 20 percent of his or her benefits would not provide a reasonable amount for any apportionee. 38 C.F.R. § 3.451 (2017). A veteran cannot prevail on a claim of hardship when he or she is receiving additional benefit for a dependent and the apportioned amount is no more than that additional benefits. See Hall, 5 Vet. App. at 295. Both types of apportionments (either “general” or “special” apportionment) are payable to a spouse or a dependent. 38 U.S.C. § 5307(a)(2); 38 C.F.R. §§ 3.450(a)(1)(ii), 3.451. A Veteran’s benefits may be apportioned if a veteran is not residing with his spouse or children, and a claim for apportionment is filed for or on behalf of the spouse or children. 38 C.F.R. § 3.452(a). 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). The “benefit-of-the-doubt rule” rule does not apply in apportionment cases because it is impossible to give the benefit of the doubt to a veteran and a claimant simultaneously. Elias v. Brown, 10 Vet. App. 259 (1997). In this case, a July 2009 decision granted a special apportionment of the Veteran’s VA compensation benefits in the amount of $750 per month, effective March 1, 2009, to the appellant on behalf of the Veteran’s three dependent children, who are in the custody of the appellant. In August 2009, the Veteran disagreed with the July 2009 grant of an apportionment of his benefits, and asserted that he has been paying the appellant child support, which was being deducted from his various sources of income. An October 2009 decision reduced the amount of the apportionment from $750 to $259 per month, based on a finding that a court had ordered the Veteran to pay the appellant $1,460 in child support, $1,201 of which were being garnished from the Veteran SSA and military retirement pay. As such, the RO decided to reduce the apportionment from $750 to $259, which is the different between amount of court-ordered support of $1,460 and the $1,201 amount of garnished pay), effective November 1, 2009. In June 2012, the RO proposed to stop the $750 apportionment, from March 1, 2009 (the date the Veteran resumed paying child support, to include prior unpaid child support) to November 1, 2009, as well as stop the $259 apportionment from November 1, 2009, due to the Veteran continuing to pay child support and the commencement of alimony payments to the appellant as of that date. In the August 2012 decision on appeal, the RO effectuated the termination of all apportionment amounts, effective March 1, 2009, which created an overpayment of VA benefits in the appellant in the total of amount of $14,547. In October 2012, the appellant requested a waiver of the overpayment, and disagreed with the RO decision to stop the apportionment. She asserted that the Veteran was in arrears with respect to his child support and alimony payments. The record reflects that, in April 2018, the Committee on Waivers and Compromises granted the appellant’s request for waiver of the overpayment in the total amount of $14,457. Accordingly, the Board will now address the remaining issue of the propriety of the termination of the apportionment in the amount of $750 from March 1, 2009 to October 1, 2009, and in the amount of $259 from October 1, 2009. In this regard, the Board will examine whether the appellant would have been entitlement to general or special apportionment of the Veteran’s VA compensation benefits on behalf of the Veteran’s three dependent children. For the reasons set forth below, the Board finds that the evidence weighs in favor of finding that termination of the apportionment of the Veteran’s VA benefits on behalf of the Veteran’s dependent children was proper. In this regard, the Board finds that, throughout the relevant period on appeal, the Veteran was reasonably discharging his responsibilities to his dependent children. An April 2009 SSA letter reflects that $768.30 per month were being withheld from the Veteran’s SSA benefits. A June 2009 Child Support Enforcement statement reflects that $1,027 in child support was being garnished, and that the Veteran was current on his child support payments. See also June 2009 Court arrearage order (showing that the Veteran was not in arrears on child support). In a July 2012 statement, the appellant confirmed that she was in receipt of $795.60 per month from the Veteran, which was being deducted from his SSA benefits, as well as $414.10 per month, which was being deducted from his retirement pay. A July 2009 Defense Finance and Accounting Services statement reflects that $433.32 per month was being garnished from the Veteran military retirement pay, and that the garnishment amount was increased to $749.08, effective September 1, 2009. A June 2012 Court Income Deduction order increased the garnished amount from the Veteran’s military pay to $849 per month. While the appellant later asserted that the Veteran was behind on his child support payments, the weight of the evidence demonstrates that most, if not all, of the child support payments were being garnished from the Veteran’s various income sources. Based on the foregoing, the Board finds that the Veteran was reasonably discharging his responsibility for his children’s support by making child support payments to the appellant on behalf of his three dependent children. Therefore, the Board must find that a general apportionment would not have been warranted during the relevant period of the claim. Having determined that the appellant is not entitled to a general apportionment, the Board must now determine whether entitlement to a special apportionment is established. After a review of all the evidence, the Board finds that a special apportionment must be denied because the appellant has not established hardship. A May 2009 VA Form 21-0788 shows that the appellant reported total monthly income of $1,258 (SSA and food stamps), and total monthly expenses of $1,252. However, the total monthly income she reported did not include the child support amounts, which, as noted above, were in excess of $1,000 per month, effective March 1, 2009. See also January 2011 VA Form 21-0788; February 2009 VA Form 5655. Accordingly, because the appellant’s income significantly exceeded her expenses, the Board finds that the appellant did not establish financial hardship. Because the appellant did not establish hardship, a special apportionment in this case would not have been warranted. See 38 C.F.R. § 3.451. Accordingly, the RO decision to terminate the apportionment of the Veteran’s VA benefits to the appellant on behalf of the Veteran’s dependent children was proper, and the appeal is therefore denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Ragheb, Counsel