Citation Nr: 19190852 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 18-15 667 DATE: December 3, 2019 ORDER A general apportionment to the appellant on behalf of J.R. (the Veteran’s child) in the amount of the dependency allowance for one dependent child from the Veteran’s VA disability compensation benefits, effective March 4, 2016, is granted. FINDINGS OF FACT 1. J.R. is the Veteran’s biological child. 2. The appellant has had primary custody of the minor child since March 4, 2016. 3. The Veteran has not reasonably discharged his duty of support for J.R. during the relevant appeal period. 4. A general apportionment in the amount of the dependency allowance for one dependent child from the Veteran’s disability compensation benefits on behalf of J.R. does not result in undue hardship on the Veteran. CONCLUSION OF LAW The criteria for a general apportionment to the appellant on behalf of J.R. (the Veteran’s child), in the amount of the dependency allowance for one dependent child from the Veteran’s VA disability compensation benefits, have been met. 38 U.S.C. § 5307 (2012); 38 C.F.R. §§ 3.450 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1970 to December 1972. The appellant is the mother of the Veteran’s child, J.R. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 decision of the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is currently with the RO in Reno, Nevada. A general apportionment to the appellant on behalf of J.R. (the Veteran’s child), in the amount of the dependency allowance for one dependent child from the Veteran’s VA disability compensation benefits, effective March 4, 2016, is granted. The appellant, the primary custodian of the Veteran’s child, J.R., seeks an apportionment of the Veteran’s VA compensation benefits on behalf of their child. She asserts that she needs further financial support for her child and that she is experiencing financial hardship. See VA Form 9 dated March 2018. The appellant also stated that the Veteran does not provide any financial support for their child, aside from paying for their cable service. Id. 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 (2018). Specifically, the law provides that all or any part of the Veteran’s VA compensation benefits may be apportioned if the Veteran is not residing with his or her spouse or children, and the Veteran is not reasonably discharging his or her responsibility for the support of the spouse or children. 38 U.S.C. § 5307 (2012); 38 C.F.R. §§ 3.450, 3.452 (2018). Notably, 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 (2018). 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 (2018). That 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 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. 38 C.F.R. § 3.451 provides further that apportionment of more than 50 percent of the Veteran’s benefits is ordinarily considered to constitute undue hardship on him or her, while apportionment of less than 20 percent of his or her benefits is ordinarily considered insufficient to constitute a reasonable basis 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) (2018). The “benefit-of-the-doubt” rule is not for application in a contested claim such as this case because the benefit of the doubt cannot be given to both the appellant and the Veteran. See Elias v. Brown, 10 Vet. App. 259, 263 (1997). Here, the evidence clearly indicates that the minor child was returned to the appellant’s primary custody on March 4, 2016. See Washoe County Department of Social Services Letter dated March 2016. However, prior to that time, the child was in the custody of Social Services beginning on October 2, 2015. The appellant filed the current claim in April 2012 and reported living with the Veteran sporadically between that time and October 2015, specifically during the periods between April 2013 and October 2013, as well as April 2014 and October 2015. As the exact amount of time during which the minor child was not living with the Veteran is unclear, the Board finds that the child’s return to the appellant’s custody on March 4, 2016 is the proper effective date for this award. Furthermore, the appellant has reported that the Veteran does not provide any financial support for their child. There is no evidence that a child support order is currently in place. The Veteran has not claimed that he currently provides financial support for J.R., nor has he provided any evidence of support paid to the appellant on his behalf. Thus, the Board finds the Veteran’s failure to provide evidence of financial support for the minor child establishes he is not reasonably discharging his responsibility for support for J.R. As such, the threshold requirements for a general apportionment have been met. 38 U.S.C. § 5307 (a)(2); 38 C.F.R. § 3.450 (a)(1)(ii). The Board further finds a general apportionment is warranted in the amount of the dependency allowance for a veteran with one dependent child. The Veteran currently appears to be in receipt of dependency benefits for one dependent child. Here, a financial need has been demonstrated by the appellant on behalf of J.R. and the minor child is entitled to share these dependency benefits. The amount apportioned by this decision is equivalent to the additional dependency allowance the Veteran receives for J.R. The Board notes the Veteran cannot prevail on a claim of hardship when he is receiving additional benefits for his dependent child and the apportioned amount is no more than the additional benefits. See Hall v. Brown, 5 Vet. App. 294, 295 (1993). Yet, the Board does find an apportionment in excess of the dependency allowance would result in undue hardship in the Veteran’s case, based upon his limited monthly income. In sum, the criteria for a monthly general apportionment of the Veteran’s VA benefits on behalf of his dependent child, J.R., have been met, effective March 4, 2016. 38 U.S.C. § 5307; 38 C.F.R. § 3.450. The Veteran has not been providing for his child, and an apportionment of the dependency allowance he would receive on the child’s account cannot, as matter of law, result in undue hardship to him. See Hall, 5 Vet. App. at 295. As a result, a general apportionment on behalf of J.R., in the amount the Veteran receives for one dependent child, effective March 4, 2016, is granted. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Erin J. Trojanowski, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.