Citation Nr: 1807727 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 05-36 751A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a monthly apportionment in support of the Veteran's dependents in excess of $625.00 prior to March 21, 2010, in excess of $425.00 from March 21, 2010 through May 24, 2011, in excess of $325.00 from May 25, 2011 through August 4, 2014, and in excess of $175.00 from August 5, 2014. REPRESENTATION Veteran represented by: Disabled American Veterans Appellant represented by: Unrepresented/Pro Se WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from December 1971 to October 1973. The Appellant seeks a higher apportionment amount in this case as the Veteran's spouse and custodial parent of their three children, referred to as C1, C2 and C3, respectively below. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 special apportionment decision by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). This case has a long and history. However, in short, this case was last before the Board in November 2015, when it was remanded for additional development. It has been returned to the Board at this time for further appellate review. The Appellant testified at a Board hearing before a Veterans Law Judge in April 2009. The Veterans Law Judge who held that hearing is no longer employed by the Board; the Appellant was informed of this fact in a November 2017 letter, as well as informed of her right to a hearing before another Veterans Law Judge concerning this matter in that letter. The Appellant indicated that she did not want another hearing in this case in a November 2017 correspondence. As a final matter, following recertification of this issue to the Board in November 2017, the Appellant-but not the Veteran-was sent a November 2017 letter informing her that the case has been returned to the Board and that she had 90 days (or until the Board issued a decision) to provide additional information. Although the Veteran was not also given the same letter and opportunity, in light of the decision in the Veteran's favor as discussed further below, the Board finds that this fact has no legal consequence in this case. FINDINGS OF FACT Any increase in the apportionment amount at any time during the appeal period would result in an undue financial hardship to the Veteran. CONCLUSION OF LAW The criteria establishing entitlement to an increased monthly apportionment in support of the Veteran's dependents throughout the appeal period have not been met. 38 U.S.C. § 5307 (2012); 38 C.F.R. §§ 3.450, 3.451, 3.458 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C. § 5307, if the veteran is not residing with his spouse and/or if the veteran's child is not in the veteran's custody, all or any part of the compensation or pension payable on account of the veteran may be apportioned as may be prescribed by the Secretary. 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 (2017). More specifically, 38 C.F.R. § 3.450(a)(1)(ii) provides that an apportionment may be paid if the Veteran is not residing with his or her spouse, or if the Veteran's children are not residing with the Veteran and the Veteran is not reasonably discharging his or her responsibility for the spouse's or 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. See Hall v. Brown, 5 Vet. App. 294 (1993). 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 (2017). That regulation provides that, without regard to any other provision regarding apportionment, where hardship is shown to exist, compensation benefits payable may be apportioned between the Veteran and his or her 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 on whose behalf the apportionment is claimed, and the special needs of the Veteran, his or her 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. 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) (2017). The propriety of whether the Appellant is entitled to an apportionment is not at issue in this case, as she has been in receipt of an apportionment throughout the appeal period. Rather, the amount that is withheld and apportioned to the Appellant is at issue in this case. Throughout the appeal period, the Veteran has been in receipt of 100 percent VA compensation benefits, which included payments for dependency for the Appellant (as his spouse), and three minor children, C1, C2, and C3, until March 21, 2010, May 24, 2011, and August 4, 2014, when each respectively turned age 18 and payment under the law for those children was discontinued. It appears to the Board that the payment of the apportionment amounts for the time periods noted above correspond with the amount of additional compensation the Veteran was paid for each particular type of dependent, such that he was in receipt of the full amount of his 100 percent compensation award throughout the appeal period but never any additional compensation for any dependent that he was receiving additional compensation for. In other words, the apportionment amount the Appellant received throughout the appeal period is the additional amount of benefits the Veteran was due to receive for dependents. Thus, for example, since August 5, 2014, it appears that the amount apportioned the Appellant is the amount that the Veteran would receive for only having her as a dependent spouse; the amount of reduced apportionment is therefore directly tied, in this case, to the expiration of entitlement to claiming any additional dependency compensation benefits following a minor child reaching the age of majority. Regarding the Appellant's financial status, the Board notes that although she has been provided with the appropriate financial reporting forms several times during the appeal period, she has not returned those completed forms. Rather, she has repeatedly submitted handwritten statements attempting to detail her expenses and income, although such statements are incomplete with regards to the totality of the information asked for by the financial reporting forms. However, after reviewing the Appellant's many statements of record, it is clear that the Appellant has repeatedly indicated throughout the appeal period that she and the Veteran's dependent children were in-and that she is still currently in-a financial hardship and, therefore, the apportionment amount should be increased. In favor of an increased apportionment, the Appellant has repeatedly averred that the sole income that she received throughout the appeal period is the apportionment amount from VA and a variable amount of other assistance (i.e., food stamps). She further stated at various times over the course of this appeal that she was having problems with paying rent and/or that she was behind in rent payments; she also indicated that she and her children were homeless or evicted several times. At several points during the appeal, she stated that she was in arrangements with friends to live with them for a minimal amount of rent, or that she had arrangements with friends for loans to be repaid whenever she could afford to. All of her statements repeatedly and consistently indicated that her expenses exceeded her income. Furthermore, although it appears that the Appellant at some point attempted to obtain child support payments from the Veteran, the documents and outcome regarding that effort were never submitted by the Appellant. She also indicated that the Veteran's dependent children were medically covered under Medicaid during the relevant appeal periods, although she did not have any medical coverage for herself throughout the appeal period. She has indicated in several statements that at least C1 and C3 had medical issues, including childhood cancer that later went into remission-eventually, that child ended up attending college and appears to no longer have any type of cancer or need of medical attention for same-and attention deficit hyperactivity disorder (ADHD) with behavioral problems, respectively. In her April 2009 hearing, the Appellant also indicated that she twice had to pay out of pocket at least twice for C3's psychiatric medication, which was expensive, when there was a lapse in Medicaid coverage for her children. She also repeatedly indicated that she was unable to work throughout the appeal period, as she needed to raise the children; she stated during her April 2009 hearing that she was unable to work because she was repeatedly called into school due to C3's behavioral issues. Later, she indicated that she was no longer able to work because she has several medical issues, such as arthritis, which would prevent her from working. Finally, she has repeatedly argued that the Veteran is not discharging his responsibilities to care for her and his dependent children throughout the appeal period. She also has asserted that the Veteran was providing false information to VA about his expenses, including owning property or having a mortgage. In her most recent correspondence in October 2017, the Appellant indicated that she should be awarded at least an apportioned amount of $800.00, which would leave "the Veteran with more than he claim[s] he needs to survive." With regards to the Veteran's financial status, the last evidence of record with regards to the Veteran's finances is a Financial Status Report, VA Form 20-5655, from April 2003. In that Report, the Veteran indicated that his only income was his VA compensation benefits and that his total monthly expenses was approximately $200.00 less than his income. However, the Veteran also indicated in box 24A that, after consideration of his other debt payments, he had $95.00 left over each month. There is also evidence from October 2002 that the Veteran was the subject of an eviction lawsuit. There is also evidence of a land contract purchase contract in May 2002, although the record does not disclose whether the Veteran still has that property and/or whether he still continues to make payments under that contract for purchase. VA has repeatedly requested updated financial information from the Veteran throughout the appeal period, including most recently in July 2016 in compliance with the November 2015 remand directives. In following up with that letter, VA contacted the Veteran in October 2016 via telephone and verified his current address; during that conversation, the Veteran indicated that he had received the letter and had given the letter to his private attorney, although he was represented by the above noted Veterans Service Organization before VA. The Veteran declined to submit paperwork to change his representation and stated that "he would absolutely not send [VA] any information about his money or anything else." Finally, the Board reflects that this matter has a long and particularly acrimonious history. The Board reflects that either the Veteran or the Appellant have been contesting the amount of apportionment since 1999. In fact, at one point the AOJ had a claim for increased apportionment by the Appellant pending before it at the same time as the Board had jurisdiction over an appeal by the Veteran for a previously awarded increase in apportionment. In a December 2006 decision, the Board previously denied the Veteran's appeal that an increased apportionment amount of $625.00 was not an unreasonable amount and did not constitute a financial hardship to the Veteran under 38 C.F.R. § 3.451. Based on the foregoing evidence, the Board cannot find that the evidence of record warrants an increase in the apportioned amount at any time throughout the appeal period. Although the Board found in December 2006 that an increase of $100.00 from $525.00 to the $625.00 amount was not unreasonable and would not constitute a hardship to the Veteran, based on the financial information of record in this case, it would appear that any amount greater than the apportioned amounts during the various periods in this case would constitute an undue hardship to the Veteran. Although the Veteran has been less than forthcoming with VA regarding to his financial situation since April 2003, the Board has no basis on which to find that the Veteran's financial picture at that time has substantially changed. In this case, the Veteran has been claiming extra dependency benefits that were subsequently withheld and apportioned to the Appellant. In that sense, the Appellant's arguments that the Veteran was not responsibly providing for the welfare of his dependent children is not correct; such payments could be seen as the Veteran reasonably discharging his responsibility of support. If she felt that such money was not an appropriate amount for child support, there were other avenues outside of pursuing an apportionment from VA that were available to the Appellant that she could have pursued in order to obtain such child support payments. In fact, it appears that the Appellant may have pursued those avenues, although she has not provided any documentation with regards to the outcome of those pursuits. Moreover, it is not clear that the Veteran is any better financial situation after each decrease in apportionment amount, as the Veteran was never in receipt of any of those additional dependency benefits. In other words, the Veteran's income has always been solely the amount of his 100 percent compensation award; in April 2003, after payment of debts and monthly living expenses, the Veteran was reporting that he was just about breaking even every month. Although the Appellant has somewhat disputed those reports by the Veteran, she has not provided evidence to demonstrate that the Veteran is living beyond the means that he has reported to VA or that his financial situation has substantially changed since April 2003. Aside from her bare and unsupported assertions that an increase in apportionment amount would not hinder the Veteran's ability to survive, the evidence available to the Board at this time simply does not support those assertions by the Appellant. In short, given that the Veteran appeared to be just breaking even every month in April 2003 and there is no evidence of record on which to find that his financial situation has substantially improved, the Board finds that any increase in the amount of apportioned benefits in this case in excess of those already withheld would constitute an undue financial hardship to the Veteran. Accordingly, although the Board may sympathize with the Appellant's financial situation, an increased monthly apportionment amount in support of the Veteran's dependents throughout the appeal period is denied. See 38 C.F.R. § 3.451. ORDER An increased monthly apportionment in support of the Veteran's dependents throughout the appeal period is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs