Citation Nr: 18147667 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 10-47 715 DATE: November 5, 2018 ORDER The decision to grant an apportionment of the Veteran’s VA disability benefits in the amount of $50 per month to A.O. on behalf of the Veteran’s dependent child, A.D., is proper. FINDINGS OF FACT 1. For the relevant period of the claim, the Veteran’s dependent child, A.D., has been in the custody of A.O. 2. For the relevant period of the claim, the Veteran received additional VA compensation for his dependent child A.D. 3. For the relevant period of the claim, the Veteran has not been reasonably discharging his responsibility for support for his dependent child A.D., and the apportionment in the amount of the additional disability compensation he is receiving for A.D. does not result in undue hardship to the Veteran. CONCLUSION OF LAW The decision to grant an apportionment of the Veteran’s VA disability benefits in the amount of $50 per month to A.O. on behalf of the Veteran’s dependent child, A.D., is 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 November 2003 to November 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Providence, Rhode Island. By way of history, A.O. filed a claim for apportionment of the Veteran’s VA disability benefits on behalf of A.D. in June 2008. The April 2009 decision on appeal granted the apportionment of the Veteran’s VA disability benefits in the amount of $50 per month to A.O. on behalf of A.D. In July 2009, the Veteran filed a notice of disagreement (NOD) with the RO decision that granted the apportionment. In April 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 As such, the Veteran’s hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). Propriety of apportionment of the Veteran’s VA disability benefits The Veteran appeals the apportionment of his VA disability benefits in the amount of $50 per month to A.O. on behalf of the Veteran’s dependent child, A.D. He asserts that the apportionment causes him undue financial hardship. See, e.g., July 2009 NOD. 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, VA received A.O.’s apportionment claim on behalf of A.D. in June 2008. The record reflects that the Veteran is the biological father of A.D., who has been in the custody of A.O. for the relevant period of the claim. Throughout the appeal period, A.D. has not resided with the Veteran, and the Veteran does not contend otherwise. For the reasons set forth below, the Board finds that, for the relevant period of the claim, the Veteran has not been reasonably discharging his responsibility to support his dependent child A.D., and a general apportionment of his VA compensation benefits in the amount of the additional disability compensation he is receiving for his dependent child A.D. is proper. In filing the apportionment claim, A.O. asserted that the Veteran was not discharging his responsibility to support his dependent child A.D., and that he was not paying court-ordered child support. See, e.g., June 2008 statement by A.D. The record reflects that a September 2007 court order ruled that the Veteran pay child support in the amount of $203 per month, which was increased to $257 per month in January 2010. The Veteran asserts that he has been making child support payments, and provided child support payment summaries showing payments from February 2008 to February 2011. See December 2009, June 2010, December 2010, and January 2011 child support payment summaries. However, this evidence shows that the Veteran was not paying child support payments on a regular basis, and that he had an outstanding child support balance of $4,658.38 as of December 2009, and an outstanding balance of $2,536.63 as of January 2011. The Veteran has not provided any evidence of additional child support payments he may have made since January 2011. Based on the foregoing, the Board finds that the weight of the evidence is in favor of finding that the Veteran has not reasonably been discharging his responsibility to support his dependent child A.D. Therefore, there is no need to consider a special apportionment. Additionally, the record shows that, during the relevant period of the claim, the Veteran has been receiving additional VA compensation for his dependent child, A.D. He only received that money because of A.D.’s status as his dependent. Accordingly, the apportionment in the amount of the additional disability compensation he received for his dependent child, A.D., does not result in undue hardship to the Veteran. See Hall at 295. Because the Veteran has not been reasonably discharging his responsibility to support A.D. throughout the relevant period of the claim, a general apportionment of his VA disability benefits in the amount of the additional disability compensation ($50 per month) he has been receiving for his dependent child, A.D. is appropriate, and the Veteran’s appeal is therefore denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Ragheb, Counsel