Citation Nr: 18158650 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 12-33 943A DATE: December 17, 2018 ORDER The Veteran’s appeal of the propriety of the special apportionment of his VA disability compensation benefits is denied. FINDING OF FACT L.V., J.W., and T.W. experienced hardship due to inadequate financial support from the date of L.V.’s September 2009 apportionment claim until the Veteran’s and L.V.’s divorce in March 2012 with continued hardship to J.W. and T.W. throughout the remainder of the appeal period, and the evidence fails to establish the special apportionment of the Veteran’s VA disability compensation to L.V. during this period caused undue hardship to the Veteran. CONCLUSION OF LAW The criteria for revocation or termination of the special apportionment of the Veteran’s VA disability compensation have not been met. 38 U.S.C. § 5307 (2012); 38 C.F.R. § 3.451 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 special apportionment decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that granted a $166.00 per month apportionment of the Veteran’s VA disability compensation benefits, effective October 1, 2009, to the appellee in this case, L.V., the Veteran’s ex-wife and custodial parent of two of his children, J.W. and T.W. The Veteran filed a timely notice of disagreement in June 2010, appealing the propriety of the apportionment. The Board notes the initial $166.00 apportionment was granted on behalf of L.V., J.W., and T.W. because the Veteran and L.V. were still married at that time. The record establishes the Veteran and L.V. divorced in March 2012. The Agency of Original Jurisdiction (AOJ) reviewed the apportionment subsequent to the parties’ divorce and determined continuance of the $166.00 per month apportionment was warranted on behalf of J.W. and T.W., with a reduction to $129.00 per month, effective January [redacted], 2018, J.W.’s 18th birthday. The apportionment is scheduled to terminate on March [redacted], 2019, T.W.’s 18th birthday. This matter was previously before the Board in July 2017, when it was remanded to schedule the Veteran’s requested hearing. The Veteran appeared at a hearing before the undersigned in June 2018. A transcript of the hearing is of record. Review of the claims file reveals that the applicable contested claims procedures have been followed in this case to the extent that the Veteran’s due process rights have been protected. The Veteran received a copy of the December 2012 statement of the case and the March 2017 supplemental statement of the case for this appeal. It does not appear the AOJ sent L.V. a copy of these documents; however, this procedural oversight does not result in any prejudice to her since she is the prevailing party in this matter. As previously noted, the Veteran appeared at a hearing before the undersigned in June 2018 to provide additional argument and testimony. L.V. received notice of the hearing, but elected not to appear. L.V. has not provided any evidence regarding this appeal since the issuance of the March 2017 supplemental statement of the case. The evidence the Veteran submitted after the June 2018 hearing is duplicative and/or cumulative of evidence received by VA earlier in the appeal period. In sum, the record establishes the Veteran is fully aware of the relevant arguments and evidence regarding this appeal and has been provided ample opportunity to present his case as to why revocation or termination of the special apportionment is warranted. Thus, the Board will proceed with the merits of his appeal. VA regulation provides for a special apportionment of disability compensation benefits between the veteran and his or her dependents on the basis of the facts in the individual case where hardship is shown to exist, as long as it does not cause undue hardship to the other persons in interest. 38 C.F.R. § 3.451. In determining the basis for a special apportionment, consideration will be given to such factors as: 1) the amount of VA benefits payable; 2) other resources and income of the veteran and those dependents in whose behalf apportionment is claimed; and 3) special needs of the veteran, his or her dependents, and the apportionment claimants. Id. Ordinarily, apportionment of more than 50 percent of the veteran’s benefits would constitute undue hardship on the veteran, while apportionment of less than 20 percent would not provide a reasonable amount for any apportionee. Id. Here, the record establishes L.V., J.W., and T.W. experienced hardship due to inadequate financial support from the date of L.V.’s September 2009 apportionment claim until the Veteran’s and L.V.’s divorce in April 2012 with continued hardship to J.W. and T.W. throughout the remainder of the appeal period. L.V. has submitted VA Forms 21-0788 throughout the appeal period, detailing her financial situation while providing for J.W. and T.W. L.V.’s financial documents show a significant income deficit throughout the appeal period, even after consideration of her wages, child support garnishments from the Veteran’s Social Security Administration (SSA) benefits, and SSA auxiliary benefits for J.W. and T.W. based on the Veteran’s entitlement with that agency. L.V.’s initial expense report on an October 2009 VA Form 21-0788 lists approximately $2,725.00 in monthly expenses, not including reported medical bills for T.W. The Board finds L.V.’s reported monthly expenses reasonable. L.V. indicated her only source of income at that time due to a period of unemployment was $366.00 per month in child support for a child that is not the Veteran’s child. L.V. reported she was not receiving any support from the Veteran for J.W. and T.W. In a February 2010 statement, L.V. explained her lack of income combined with the lack of support from the Veteran prompted her to file an apportionment claim. In a July 2010 statement, the Veteran acknowledged he was not providing any support for J.W. and T.W. Thus, the Board finds hardship was clearly established at the time of the initial apportionment award. In March 2012, the Veteran contacted VA and asked that L.V. be removed from his award due to the finalization of their divorce. The divorce decree required the Veteran to pay $386.37 per month in child support to L.V. with a $5.00 monthly clearing house fee for a total monthly payment of $391.37. The Board notes the child support calculation worksheet shows L.V.’s monthly income was $1,618.00 at that time. The Veteran initially requested that the $166.00 per month apportionment be reported to the child support clearing house, but he later requested that the apportionment be terminated because his child support obligation was being garnished from his SSA benefits. The Veteran also reported L.V. was receiving $328.00 per month in SSA auxiliary benefits for J.W. and T.W. The Board notes L.V.’s previously reported monthly expenses of $2,725.00 still exceeded her monthly income of $2,503.37 at that time, even with an apportionment in place ($1,618.00 in wages + $391.37 in child support + $328.00 in SSA auxiliary benefits + $166.00 VA apportionment). Thus, the record shows J.W. and T.W. still experienced hardship due to inadequate financial support following the parties’ March 2012 divorce despite the increased support from the Veteran. In November 2016, L.V. provided an updated VA Form 21-0788. She reported her monthly income had dropped to $573.17 with monthly expenses of $2,905.00. Although the exact amount is unclear, the record establishes L.V. was receiving between $800.00 and $900.00 per month from the SSA due to combination of child support garnishments and auxiliary benefits for J.W. and T.W. This amount increased to approximately $1,000.00 in 2018 at which time the apportioned amount dropped to $129.00 per month. Thus, even assuming L.V.’s income returned to the highest reported level of $1,618.00, the record fails to establish her total monthly income ever exceed her total monthly expenses at any point in the appeal period. As a result, the Board finds the record establishes continued hardship on behalf of J.W. and T.W. throughout the appeal period. The evidence also fails to establish the special apportionment awarded to L.V. has resulted in undue hardship to the Veteran at any point in the appeal period. In this regard, the Board notes the Veteran has not submitted a VA Form 21-0788 for himself at any point in the appeal period, frustrating VA’s efforts to accurately assess his financial situation. He provided a list of his monthly expenses in his June 2010 notice of disagreement, but did not provide his income information at that time. The Board recognizes the Veteran submitted two VA Forms 5655 in the context of debt waiver requests during the appeal period; however, these financial statements do not include the implementation of his 100 percent VA payment rate, effective August 13, 2011. Prior to that date, the apportionment on behalf of L.V., J.W., and T.W. was equivalent to the dependency allowance the Veteran received for L.V., J.W., and T.W. See Hall v. Brown, 5 Vet. App. 294, 295 (1993) (holding 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). The Veteran has not provided an updated statement regarding his financial situation since his award of a 100 percent VA payment rate or the continuance of $166.00 per month apportionment solely on behalf of J.W. and T.W. Thus, the Board is unable to determine whether the level of apportionment maintained after the parties’ April 2012 divorce results in undue hardship to the Veteran because he has failed to provide the requested information in this regard. The Veteran has rather asserted an apportionment of his VA disability compensation benefits is not warranted because child support is garnished from his monthly SSA benefits and L.V. has received additional SSA auxiliary benefits for J.W. and T.W. based on his entitlement. The Board notes VA regulation authorizes the award of a special apportionment even when a veteran is reasonably discharging his or her duty of support when the evidence establishes hardship to a dependent despite the current level of support and the apportioned amount does not result in undue hardship to the veteran. See 38 C.F.R. § 3.451. Simply put, the fact that the Veteran makes a significant contribution to his children’s support through his SSA benefits does not preclude the award of an additional amount through a special apportionment. As previously noted, the Board finds the Veteran’s dependents experienced hardship even with the child support garnishment and auxiliary benefits from the SSA in place. Further, the child support calculation worksheet for the parties’ March 2012 divorce decree clearly shows the Veteran’s 100 percent VA payment rate, effective August 13, 2011, was not considered when determining his monthly child support obligation. The Board recognizes the effective date of the 100 percent VA payment rate was authorized after the parties’ divorce; however, there is no indication the Veteran’s child support obligation has been recalculated since the 100 percent payment rate was granted. This is notable because the Veteran’s monthly income between VA and SSA benefits is at least double the monthly income noted on the child support worksheet that led to the monthly child support obligation of $386.37. The Veteran has also alleged L.V. submitted a VA Form 21-0788 in September 2009 with his signature forged on the document. The Board notes the AOJ did not consider this document or the financial information contained therein in its analysis of whether an apportionment was warranted in the Veteran’s case. This document only has relevance to the extent that it established the date of L.V.’s initial claim. As previously noted, the Board finds the record does not include a VA Form 21-0788 from the Veteran, even though this financial statement was requested from the Veteran by the AOJ on several occasions during the appeal period and by the undersigned during the June 2018 hearing. The undersigned informed the Veteran that the record in this case would be left open for 60 days following the hearing to provide the requested financial statement. Yet, the Veteran did not provide a statement of his finances as requested and rather resubmitted copies of VA Form 21-0788 submitted by L.V., which have already been associated with the claims file. The Board notes financial statements prepared by L.V. have no bearing on the issue of whether the apportioned amount results in undue hardship to the Veteran, which is a central issue in this appeal. In sum, the Board finds L.V., J.W., and T.W. experienced hardship due to inadequate financial support from the date of L.V.’s September 2009 apportionment claim until the Veteran’s and L.V.’s divorce in March 2012 with continued hardship to J.W. and T.W. throughout the remainder of the appeal period. The Board further finds the Veteran has failed to provide evidence that the special apportionment of $166.00 per month prior to January [redacted], 2018 and $129.00 per month thereafter has caused him undue hardship. The Board recognizes the Veteran has his own financial obligations, to include the support for other children besides J.W. and T.W., but he has not provided a full accounting of both his income and expenses at any point in the appeal period. Without this information, the Board cannot make an informed decision as to whether the apportioned amount causes him undue hardship. As a result, his appeal of the propriety of the special apportionment must be denied because the record otherwise establishes his dependents experience hardship due to inadequate financial support. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel