Citation Nr: 1806392 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 11-24 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an apportionment of the Veteran's Department of Veterans Affairs (VA) benefits on behalf of her and the Veteran's three oldest children. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to May 1971. The appellant is the mother of their four children, the three oldest of whom are the subject of this appeal (RNM, RLM, and RTM). This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 administrative decision of the Department of Veterans Affairs (VA) Pension Management Center (PMC) in Milwaukee, Wisconsin. As the appellant seeks apportionment of the Veteran's VA benefits, both she and the Veteran are considered parties to this contested claim. See 38 C.F.R. §§ 19.100, 20.504 (2017). In her August 2011 substantive appeal (VA Form 9), the appellant requested a hearing before the Board. In October 2017 a Travel Board hearing (attended by the Veteran and his representative, Disabled American Veterans) was held before the undersigned. The appellant, who is unrepresented, failed to report for the hearing, despite having received two letters notifying her of the hearing. She did not provide explanation for her failure to report, or request that the hearing be rescheduled, and her hearing request is deemed to be withdrawn. See 38 C.F.R. § 20.704 (2017). This appeal does not involve the issue of an apportionment of the Veteran's VA benefits for the youngest child (RJM) of the appellant and Veteran, which was a matter discussed at the Travel Board hearing in October 2017. (Since then, it has become clear to the Board through further review of the record that it does not have jurisdiction over the matter involving RJM.) That issue was specifically addressed in a special apportionment decision of December 2010, given that RJM was a minor child in the custody of the appellant at that time (in contrast to the three older children, who had already reached the age of majority). An appeal of the December 2010 determination was not initiated by the filing of a notice of disagreement by either party; therefore, the Board does not have jurisdiction over it and it will not be addressed herein. The Board also notes that January 2011 and October 2011 rating decisions awarded the Veteran service connection for posttraumatic stress disorder (PTSD), a total disability rating based on individual unemployability due to service-connected disability (TDIU), and basic eligibility to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C., Chapter 35, all effective January 22, 2009. The file indicates that all four of the Veteran's children with the appellant have attended college since the effective date of that award. Whether any of the children would be entitled to benefits (retroactive or presently) based on such award is not before the Board. In any event, a claim for such benefits by any potential beneficiaries has not been received. Therefore, the matter is referred to the AOJ for any appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. In March 2010, the appellant filed a claim seeking an apportionment of the Veteran's VA benefits on behalf of her and the Veteran's three oldest children (RNM, RLM, RTM); birth certificates for these children show that each had reached the age of 18 years (majority) by February 2009. 2. A claim for apportionment of the Veteran's benefits filed by any of the three oldest children of the Veteran and the appellant has not been received . CONCLUSION OF LAW The appellant is not a proper claimant for an apportionment of the Veteran's VA benefits on behalf of her and the Veteran's three oldest children (RNM, RLM, RTM) as they had each reached majority and therefore the proper claimants for such benefits; an apportionment of any such benefits to the appellant is not warranted as a matter of law. 38 U.S.C. §§ 5307, 7104, 7108 (2012); 38 C.F.R. §§ 3.450, 3.451, 3.403, 3.458 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, the VCAA has no application where (as here) under governing law (38 U.S.C. §§ 5307, 7104, 7108) or regulation (38 C.F.R. §§ 3.450, 3.451, 3.403, 3.458) the appellant is not a proper claimant for the benefit sought. No amount of notice or assistance would enable her to obtain the underlying benefit sought. Regarding proper claimant status, the law is dispositive. On a related matter, as previously noted, this case involves a contested claim, which requires that certain procedures be followed. See 38 U.S.C. §§ 7102(b)(2) and 7105A, and 38 C.F.R. §§ 19.100-02 and 20.500-04. In general, both parties to a simultaneously contested claim must receive notice of all procedural actions in the case, including the administrative determination with notification of appellate rights, the statement of the case (SOC), and the content of the substantive appeal filed by the opposing party to the extent it contains information directly affecting the payment (or potential payment) of the apportionment at issue. Here, not all such procedures were followed. For example, it does not appear that the Veteran was sent copies of the June 2010 PMC determination at issue or the SOC sent to the appellant in August 2011. Nevertheless, given the disposition of this matter dismissal of the appeal, there is no prejudice to the Veteran from the due process oversights. Legal Criteria, Factual Background, and Analysis Under 38 U.S.C. § 5307, if a Veteran's child is not in his custody, all or any part of the pension or compensation payable on account of the Veteran may be apportioned as may be prescribed by the Secretary. In general, the term "child of the Veteran" includes an unmarried person who is under the age of 18 years; or, who, before reaching the age of 18 years, became permanently incapable of self-support; or, who after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 C.F.R. § 3.57. VA regulations provide for two types of apportionments. A "general" apportionment may be paid under the circumstances set forth in 38 C.F.R. § 3.450. More specifically, 38 C.F.R. § 3.450 provides that an apportionment may be paid if the veteran's children are not residing with him and he is not reasonably discharging his responsibility for the children's support. 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. The second type of apportionment is a "special" apportionment which may be paid under the circumstances set forth in 38 C.F.R. § 3.451. The regulation provides that, without regard to any other provision regarding apportionment, where hardship is shown to exist, compensation may be 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. This regulation provides further guidance as to what is ordinarily considered to constitute undue hardship. For example, the amount apportioned should generally be consistent with the total number of dependents involved, and ordinarily apportionment of more than 50 percent of the veteran's benefits would constitute undue hardship on him while apportionment of less than 20 percent of his benefits would not provide a reasonable amount for an apportionee. If there are any children of the veteran not in his or her custody, an apportionment of the veteran's benefits will not be authorized unless and until a claim for an apportioned share is filed in their behalf. 38 C.F.R. § 3.458(g). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA; if an individual has not attained the age of 18 years, is mentally incompetent, or is physically unable to sign a form, a form may be signed by a court-appointed representative, a person who is responsible for the care of the individual including a spouse or other relative, or an attorney in fact or agent authorized to act on behalf of the individual under a durable power of attorney. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Direct payments of pension, compensation, or dependency and indemnity compensation to or for a child, where a child if competent has reached the age of majority, such payments will be effective from the date the child has reached majority (or date of last payment, whichever is earlier). 38 C.F.R. § 3.403; see also 38 C.F.R. § 3.854. In March 2010, the appellant filed a claim for apportionment of the Veteran's benefits on behalf of her four children with the Veteran. She asserted that the children were attending school and needed "help." With her claim, she submitted copies of birth certificates for each of the children, which reflect that the three oldest children (RNM, RLM, RTM) had reached the age of 18 years (majority) by February 2009 (i.e., before the filing of her apportionment claim). Also received by VA in March 2010 regarding the three oldest children, each, is a VA Form 21-674, Request for Approval of School Attendance, which was signed by the Veteran. These forms reflect that they were each attending university and had expected graduation dates in May 2010, May 2013, and January 2014, respectively. In June 2010, the Milwaukee PMC issued the appellant a letter, denying her claim seeking an apportionment on behalf of her three oldest children (a decision regarding her youngest child was pending due to ongoing development of that issue). The PMC notified her that her three oldest children had reached the age of 18 by the time she had filed her claim. In a July 2010 statement, she asserted that at the time the Veteran applied for VA benefits, she did not know about filing a claim for an apportionment of those benefits. She also asserted that her children were under the age of 18 at that time. She argued that it was a financial hardship raising the children without child support or other help from the Veteran. In an August 2011 substantive appeal, she appears to be arguing that the evidence in the file was not properly reviewed. A review of the record found that the Veteran was initially awarded nonservice-connected pension benefits in a February 2010 rating decision, and that the award was effective from January 2009. Subsequently, January 2011 and October 2011 rating decisions awarded him service connection for PTSD, a TDIU eligibility, and basic eligibility to DEA benefits under 38 U.S.C., Chapter 35, all effective January 22, 2009. He also received additional dependency benefits on account of all of his children (until they reached the age of 23), as they were pursuing university education. A claim for an apportionment of the Veteran's VA benefits by the appellant (who by all accounts had been the custodial parent to her and the Veteran's children) was initially received in March 2010. At the time of the claim, the three oldest children were all pursuing a university education, and there is no evidence to suggest that any was married. Thus, they each would be deemed a "child" for VA purposes (38 C.F.R. § 38 C.F.R. § 3.57). However, in March 2010, as indicated by their birth certificates, RNM, RLM, RTM had all reached the age of 18 years and were thus no longer minor children in the custody of the appellant. The question that arises from such status is whether or the appellant had proper legal standing to file for an apportionment of the Veteran's benefits on their behalf (as they were already of the age of majority). Clearly, the Veteran was receiving a dependency allowance for RNM, RLM, and RTM; none were residing with him, but the matter of eligibility to receive an apportionment of his VA benefits is yet to be determined. Although an apportionment arises from a Veteran's benefits, an apportionment is an entity which is legally separate from those benefits. When a Veteran's dependent files for an apportionment, the dependent seeks to exercise his or her right to an apportionment. Belton v. Principi, 17 Vet. App. 209, 211 (2003); 38 U.S.C. § 5307; Redding v. West, 13 Vet. App. 512, 514-15 (2000); Hall v. Brown, 5 Vet. App. 294, 294-95 (1993). The law requires that an appellant who files an appeal must have standing. For an appellant to have standing, that individual must demonstrate that he or she has been injured and has a "personal stake in the outcome of the controversy." Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962); Belton v. Principi, 17 Vet. App. 209, 211 (2003); Redding v. West, 13 Vet. App. 512, 514 (2000). Here, the appellant does not have a legal claim or standing to pursue an appeal for an apportionment on behalf of any of her three oldest children with the Veteran; as will be shown, an apportionment would be payable pursuant to their claim(s), and any appeal seeking an apportionment would have to be from them. This case is clearly not an appeal for an apportionment of the Veteran's VA benefits by any of the three oldest children, themselves. Before the Board may exercise jurisdiction in a matter, a party must show that it is a proper claimant. See Aguilar v. Derwinski, 2 Vet. App. 21 (1991). Under the law (38 U.S.C. § 5307 and 38 C.F.R. §§ 3.450, 3.451), all or part of the pension or compensation payable to the Veteran may be apportioned to his child not in his custody. While the payment of an apportioned share of the Veteran's benefits to his three oldest children is a benefit under the laws administered by the VA, it is the children, not the appellant, who were potentially eligible for such benefit. As they had reached the age of majority (albeit still pursuing university instruction) and were presumably competent, the appellant was no longer their custodian, and the apportionment would be paid to them. 38 C.F.R. §§ 3.403, 3.854. The appellant did not have legal standing to receive payment of an apportionment on their behalf. As the appellant is not a proper claimant for this benefit, her appeal for entitlement to an apportionment of the Veteran's VA benefits on behalf of her children who had reached the age of majority must be dismissed. 38 U.S.C. § 7104, 7108. None of the appellant's children (RNM, RLM, RTM) has filed a claim for an apportionment of the Veteran's VA benefits. By the time the Veteran was awarded VA benefits (first pension benefits, then compensation), each had attained the age of 18 years and was competent and otherwise able to sign and submit the application form. Thus, it is they who would be potentially eligible to receive the apportionment, and it is they to whom such payment would potentially be made (and not to the appellant). Because the appellant's three oldest children with the Veteran had already reached the age of majority by the time of the receipt of the appellant's apportionment claim, with none of them having filed an apportionment claim on his/her own behalf as would be his/her right, the appellant is not a proper claimant for an apportionment on their behalf as a matter of law. The Board has no authority to grant a benefit that is not authorized by law. See 38 U.S.C. §§ 501, 7104. Therefore, the appeal must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App.426 (1994). ORDER The appeal seeking an apportionment of the Veteran's VA benefits on behalf of his and the appellant's three oldest children is dismissed. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs