Citation Nr: 18151453 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 12-11 259 DATE: November 20, 2018 ORDER Entitlement to an apportionment of the Veteran’s VA benefits to his mother during his incarceration is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s mother, N.B., is a “dependent” for VA purposes. CONCLUSION OF LAW The criteria for an apportionment to of the Veteran’s VA benefits to his mother during his period of incarceration have not been met. 38 U.S.C. §§ 102, 5313,5307 (West 2014); 38 C.F.R. §§ 3.250, 3.450,3.665 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1977 to August 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Phoenix, Arizona. Apportionment of VA benefits The Veteran seeks an apportionment of his VA benefits to his mother, N.B., for the period of his incarceration. See, e.g., January 2010 Veteran statement. 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. See 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). 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). The Veteran has been in receipt of a total disability rating based on individual unemployability due to service-connected disabilities since March 2009. A September 2010 Court Order shows that the Veteran was sentenced to 3.5 years of incarceration for conviction of a felony. In January 2010, the Veteran submitted a request to apportion his VA benefits to his mother while he is incarcerated. In this regard, the Veteran asserted that his request for an apportionment of his VA benefits is because he wished to support his mother financially because she was in financial need. See, e.g., March 2010 Veteran statement. The record reflects that N.B. is the Veteran’s biological mother. See, e.g., May 1959 birth certificate. The remaining question for the Board is whether the Veteran’s mother, N.B., is a “dependent” for VA purposes. In support of the claim, the Veteran’s mother provided an April 2010 VA Form 21-0788, which showed that her total monthly income was $1,827.79, and total monthly expenses, to include rent, food, utilities, clothing, and medical expenses, were $910. See also April 2010 VA Form 21-509. On April 27, 2010, the Veteran’s mother provided a statement showing that she had biweekly wages of $507.24 (approximately $1,099.22 per month), as well as monthly Social Security income of $724 per month for a total income of approximately $1,823.02 per month. In the same statement, the Veteran’s mother provided detailed monthly expenses, to include rent, food, utilities, car payments and maintenance, and other expenses, which totaled approximately $1,087 per month. Accordingly, even after deducting monthly expenses, the net monthly income of the Veteran’s mother significantly exceeds the amount of $400 per month under 38 C.F.R. § 3.250(a)(1)(i). Based on the foregoing, the Board finds that the Veteran’s mother, N.B., does not meet the criteria of a “dependent” parent pursuant to 38 C.F.R. § 3.250. In this regard, the weight of the evidence demonstrates that N.B.’s monthly income, to include after deducting expenses for “reasonable maintenance,” significantly exceeds the regulatory threshold of $400 per month. 38 C.F.R. § 3.250(a)(1)(i), (b)(1). Accordingly, the Veteran’s mother, N.B., does not qualify as a “dependent” of the Veteran for VA purposes, and an apportionment of the Veteran’s VA benefits to N.B. during the period of the Veteran’s incarceration must, therefore, be denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Ragheb, Counsel