Citation Nr: 18152937 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 15-09 795 DATE: November 27, 2018 ORDER Entitlement to an apportionment of the Veteran’s VA benefits to the appellant, in the amount of the additional compensation the Veteran is receiving for the appellant as his dependent spouse, is granted. FINDINGS OF FACT 1. The Veteran and appellant were married in March 2003. 2. The Veteran has claimed the appellant as a dependent spouse for VA compensation purposes since November 2009. 3. For the relevant period of the claim, the Veteran has received additional VA benefits for the appellant as his dependent spouse. 4. The Veteran has not been reasonably discharging his responsibility to support the appellant as his dependent spouse, and a general apportionment in the amount of the additional VA compensation he is receiving for the appellant as his dependent spouse does not result in undue hardship to the Veteran. CONCLUSION OF LAW The criteria for an apportionment of the Veteran’s VA benefits to the appellant in the amount of the additional compensation he is receiving for the appellant as his dependent spouse have been met. 38 U.S.C. § 5307 (West 2014); 38 C.F.R. § 3.450, 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 May 1978 to May 1984. The appellant is the Veteran’s estranged wife. This matter comes before the Department of Veterans’ Affairs (VA) Board of Veterans’ Appeals (Board) from a November 2012 decision of the Regional Office (RO) located in Montgomery, Alabama. The March 2015 VA Form 9 reflects that the appellant requested a Board hearing via videoconference. A hearing before a member of the Board was scheduled in June 2018, but the appellant did not appear for the hearing. As such, the appellant’s hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2017). Entitlement to an apportionment of the Veteran’s VA benefits The appellant seeks an apportionment of the Veteran’s VA benefits. 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. 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 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. 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, the VA received the appellant’s apportionment claim on November 4, 2011. The record reflects that the Veteran and appellant were married in March 2003, and that the Veteran has claimed the appellant as his dependent spouse for VA compensation purposes since November 2009. See, e.g., November 2009 VA Form 21-686c. For the reasons set forth below, the Board finds that the Veteran has not been reasonably discharging his responsibility to support the appellant as his dependent spouse, and a general apportionment of his VA compensation benefits in the amount of the additional disability compensation he is receiving for the appellant as his dependent spouse is warranted. The appellant contends that she has been separated from the Veteran since 2010, and that the Veteran receives VA dependency benefits based on her status as a dependent spouse, but does not support her financially in any way. See, e.g., November 2011 VA Form 21-4138. The Veteran has not alleged, and the record does not otherwise show, that the Veteran has been providing for his estranged wife. Based on the foregoing, the Board finds that the weight of the evidence is in favor of finding that the Veteran has not been reasonably discharging his responsibility to support the appellant as his dependent spouse. Since the Veteran has not been reasonably discharging his responsibility to support the appellant, there is no need to consider a special apportionment. Additionally, the record shows that, throughout the relevant period of the claim, the Veteran has received additional VA compensation for his estranged wife as his dependent spouse. See, e.g. September 2010 VA notification letter; December 2015 VA notification letter. In fact, the record reflects that Veteran has claimed spousal aid and attendance benefits on behalf of the appellant, which was granted by the RO in October 2018. See October 2018 rating decision. The Veteran is only receiving dependency and spousal aid and attendance benefits because of the appellant’s status as his dependent spouse. Accordingly, the apportionment in the amount of the additional disability compensation he is receiving for the appellant as his dependent spouse 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 the appellant as his dependent for the relevant period of the claim, a general apportionment of his VA disability compensation in the amount of the additional disability compensation he is receiving for the appellant as his dependent spouse is appropriate. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Ragheb, Counsel