Citation Nr: 1808009 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-09 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an apportionment of the Veteran's VA compensation benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Appellant and the Veteran ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on various periods of active duty, active duty for training, and inactive duty training between February 1990 and October 2016. The appellant is claiming apportionment on behalf of a minor child. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 special apportionment decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2017, the appellant and the Veteran separately testified at the RO before a Veterans Law Judge. A transcript of these hearings has been added to the claims file. The Board notes that additional evidence was submitted following the last adjudication by the RO and the issuance of the April 2012 supplemental statement of the case. Additionally, this evidence was not accompanied by a waiver of RO initial consideration. As the outcome is favorable to the Veteran, however, the new evidence may be initially considered by the Board. 38 U.S.C.A. § 7105(e). FINDINGS OF FACT 1. During the pendency of this appeal, the Veteran was responsible for paying child support to the appellant on behalf of his child, S.P. 2. During the pertinent time period, an undue burden to the Veteran would result from an apportioned share of his VA compensation benefits. CONCLUSION OF LAW The criteria establishing entitlement to an apportionment of the Veteran's disability benefits for his dependent child have not been met. 38 U.S.C. § 5307 (2014); 38 C.F.R. §§ 3.450, 3.451, 3.458 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (a), which implement the Veterans Claims Assistance Act of 2000 (VCAA). The United States Court of Appeals for Veterans Claims (the Court) has held, however, that the VCAA does not apply to decisions regarding how benefits are paid. Sims v. Nichols, 19 Vet. App. 453, 456 (2006). An apportionment decision involves a determination as to how existing benefits are paid, such as between a veteran and his dependent in the case at hand. Under the reasoning in Sims, the VCAA would not appear to be applicable to apportionment adjudications. The Board notes that a claim for an apportionment is a contested claim and is subject to special procedural regulations as set forth in 38 C.F.R. §§ 19.100, 19.101, and 19.102. Under applicable criteria, all interested parties will be specifically notified of the action taken by the agency of original jurisdiction in a simultaneously contested claim and of the right and time limit for initiating an appeal, as well as hearing and representation rights. 38 C.F.R. § 19.100. Upon the filing of a notice of disagreement in a simultaneously contested claim, all interested parties will be furnished with a statement of the case. 38 C.F.R. § 19.101. Here, a statement of the case was furnished to both the appellant and the Veteran in February 2012. The Board additionally notes that the appellant submitted information regarding financial hardship and thus shows actual knowledge of information necessary in determining apportionment. See e.g. Dalton v. Nicholson, 21 Vet. App. 23, 34 (2007) (holding that VCAA notice error was not prejudicial because the appellant demonstrated actual knowledge of the information and evidence necessary to substantiate the claim). The RO afforded the appellant and the Veteran the opportunity to present information (e.g., list of monthly income and average expenses) and evidence in support of the claim. The Board finds that these actions satisfy any duties to notify and assist owed the Veteran and the appellant in the development of this claim. The appellant is the mother of the Veteran's minor child, S.P. She seeks an apportionment of the Veteran's VA compensation benefits on behalf of this child. A veteran's benefits may be apportioned if the veteran is not residing with his spouse, and a claim for apportionment is filed for or on behalf of the spouse or a minor child. 38 C.F.R. § 3.452 (a). 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. 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, and the veteran is not reasonably discharging his responsibility for the spouse's support. 38 U.S.C.A. § 5307 (a)(2); 38 C.F.R. § 3.450 (a)(1)(ii). 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. 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. 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. The special apportionment applies where a veteran is reasonably discharging his responsibility for the support of any claimant who might otherwise be entitled to a "general" apportionment, but special circumstances-such as an inability to pay for essentials such as food, clothing, shelter or medical expenses-exist which warrant giving dependents additional support. See, e.g., Vet. Reg. No. 6(c), Instruction No. 2, VI (Oct. 1934); cf. Vet. Reg. No. 6(c), 4 (June 1934). Both of these types of apportionments (either "general" or "special") are payable to a spouse or dependent. 38 U.S.C. § 5307(a)(2) (2012); 38 C.F.R. §§ 3.450 (a)(1)(ii), 3.451. 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. In the present case, the appellant requests an apportionment of the Veteran's VA compensation benefits on behalf of a child, S.P., claimed to be the Veteran's minor child. This request was initially denied in a February 2011 administrative decision. At the time of this decision, the Veteran was in receipt of a 20 percent combined rating, effective from January 19, 2009, for his service-connected disabilities. The appellant has submitted a birth certificate dated in July 2000 listing the Veteran as the father of S.P., and the Veteran has not contested the assertion that S.P. is his child; as such, S.P. is recognized as the child of the Veteran by the Board. As S.P. was born in July 2000, she is at present under the age of 18. Considering first a general apportionment, the appellant argues that the Veteran was not reasonably discharging his responsibility for his child's support. The Veteran has reported, however, that he has paid child support for many years. In support of this assertion, a November 2010 state court order was submitted. This order required the Veteran to pay $244 per month to the appellant on behalf of S.P. This order represents a reduction from $288 previously ordered by the state court. The Veteran has also reported he pays approximately $175 in additional costs for health and dental benefits for S.P. In support thereof, he submitted a December 2012 court summary of his child support payments, showing them to be current as of that date. A September 2010 Department of Defense income statement reflects net monthly service retirement benefits of $2226. The Veteran has also been awarded VA disability compensation benefits with a combined rating of 20 percent, currently payable at $269 per month. In a December 2010 statement, the Veteran reported monthly income of $3362 from all sources, and expenses of $3638. More recent income and expense statements are not of record. Documents in the file reflect a period of active duty service for the Veteran between October 2015 and October 2016, but do not indicate the amount of income for such service. Finally, at his 2017 hearing, the Veteran reported occasional part time work, resulting in a total monthly income from all sources of between $3000 and $4000 most months. Regarding expenses, he reported at his hearing current monthly expense of approximately $1200 for rent and utilities, $871 in child support costs and $595 in healthcare costs for two other minor children, approximately $200 for groceries, and $100 for car insurance. In a December 2010 statement, the appellant reported monthly income of $3530, to include child support payments from the Veteran, and monthly expenses of $3587. More recent income and expense statements for the appellant are also not of record. With respect to a general apportionment, the Board notes that the evidence of record reflects that the Veteran paid some support for his child beginning in approximately 2007 or earlier. Accordingly, it cannot be said that the Veteran failed to reasonably discharge his responsibility for the child's support. See 38 U.S.C. § 5307(a)(2); 38 C.F.R. § 3.450(a)(1)(ii). Thus, the requirements for a general apportionment are not met. See 38 C.F.R. § 3.450(a)(1)(ii). Regarding a special apportionment, based on a review of the financial information of record, recent and more detailed income and expense information has not been received from either party. The Appellant has testified as to her expenses and the expenses of raising a child and the increased expenses as S.P. got older. She testified that she felt her expenses exceeded her income each month. Regardless, the applicable regulations provide for consideration not only for her needs or those of a dependent child, but also those of the Veteran. See 38 C.F.R. § 3.451. As discussed, the role of VA is to make a determination as to whether an apportionment would constitute a financial hardship to both the appellant and the Veteran, based on the reported income and expenses. In the present case, the Board finds that, with respect to both a general and special apportionment, given the reported income and expenses of the Veteran, an apportionment from his VA benefits would result in undue financial hardship for him. The Board also notes that the Veteran has already been paying court-ordered child support and health insurance costs for S.P. for many years, including prior to receipt of the appellant's request for apportionment. Accordingly, based upon a review of the evidence of record, it cannot be said that an apportionment would present no undue hardship to the Veteran or other persons of interest. See 38 C.F.R. § 3.451. In short, for the reasons and bases set forth above, the Board concludes that the weight of the evidence is against findings that the Veteran's payable VA benefits permit payment of any additional amount to any apportionee, and any further apportionment of these benefits would not cause undue hardship to the Veteran. Therefore, the preponderance of the evidence is against the claim of entitlement to apportionment of the Veteran's compensation benefits for the support of his minor child, and it is denied. ORDER Entitlement to an apportionment of the Veteran's VA compensation benefits is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs