Citation Nr: 18148373 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 11-11 007 DATE: November 7, 2018 ORDER Entitlement to an increase in the amount of the apportionment of the Veteran’s VA disability benefits to the appellant on behalf of his dependent children, S.H., J.H., and G.H., to the amount of the additional disability compensation the Veteran has received for his dependent children, is granted. FINDING OF FACT 1. For the relevant period of the claim, the Veteran has received additional VA compensation for his dependent children, S.H., J.H., and G.H. 2. For the relevant period of the claim, an increase in the amount of apportionment of the Veteran’s VA disability benefits to the amount of the additional disability compensation he has received for his dependent children, S.H., J.H., and G.H., does not result in undue hardship to the Veteran. CONCLUSION OF LAW The criteria for an increase in the amount of apportionment of the Veteran’s VA disability benefits to the appellant on behalf of his dependent children, S.H., J.H., and G.H., to the amount of the additional disability compensation the Veteran has received for his dependent children, have been met. 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 FINDING AND CONCLUSION The Veteran served on active duty from May 1984 to October 1985. The appellant is the mother and custodian of the Veteran’s dependent children S.H., J.H., and G.H. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Philadelphia, Pennsylvania. In March 2014, the Board remanded the issue on appeal to the Agency of Original jurisdiction (AOJ) in order to ensure compliance with contested claims procedures, request financial information from the Veteran and appellant, and determine if the Veteran is receiving Social Security disability benefits. The above-referenced development has been completed, and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an increased apportionment of the Veteran’s VA benefits The appellant seeks an increase in the amount of the apportionment of the Veteran’s VA disability benefits she is receiving on behalf of the Veteran’s dependent children S.H., J.H., and G.H. 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. 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). By way of history, in a June 2009 decision, the RO granted an apportionment of the Veteran’s VA disability benefits in the amount of $198 per month to the appellant on behalf of the Veteran’s dependent children S.H., J.H., and G.H. The $198 amount was the amount of the additional disability compensation the Veteran was receiving for his three dependent children. In an August 2009 rating decision, the RO granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In September 2009, VA received the appellant’s claim for an increase in the amount of the apportionment due to the increase in the Veteran’s VA compensation following the August 2009 grant of a TDIU. The June 2010 decision on appeal denied an apportionment in excess of $198 per month based on finding that any increase in the apportionment amount would cause the Veteran undue financial hardship. To the extent to which the appellant asserts that the Veteran’s dependent children resided with her, and that the Veteran has not fully paid child support, which is the basis of a general apportionment, such general apportionment has been granted in the June 2009 decision. Because a general apportionment has been granted, there is no need to consider a special apportionment. Rather, the pertinent question is whether the appellant is entitled to an increased apportionment amount. For the reasons set forth below, the Board finds that an increase in the amount of apportionment of the Veteran’s VA disability benefits to the appellant on behalf of his dependent children, S.H., J.H., and G.H., to the amount of the additional disability compensation the Veteran has received for his dependent children is warranted. The record reflects that the original apportionment amount of $198 per month was based on the amount of the additional disability compensation the Veteran was receiving for his dependent children. However, the amount of additional disability compensation the Veteran was receiving for his dependent children has increased due to the grant of a TDIU in August 2009, as well as due to periodic cost of living adjustments. This increase has not been reflected in the amounts the appellant has received on behalf of S.H., J.H., and J.H. The Veteran only received that money because of his children’s (S.H., J.H., and G.H.) status as his dependents. The apportionment in the total amount of the additional disability compensation he has received for his dependent children, S.H., J.H., and G.H., to include the increases due to the grant of a TDIU and periodic cost of living adjustments, does not result in undue hardship to the Veteran. See Hall at 295. Based on the foregoing, the Board finds that an increase in the amount of apportionment of the Veteran’s VA disability benefits to the appellant on behalf of his dependent children, S.H., J.H., and G.H., to the amount of the additional disability compensation the Veteran has received for his dependent children, as increased as a result of the grant of a TDIU and as due to periodic cost of living adjustments, is warranted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Ragheb, Counsel