Citation Nr: 19108398 Decision Date: 02/04/19 Archive Date: 02/04/19 DOCKET NO. 17-07 697 DATE: February 4, 2019 REMANDED Entitlement to an apportionment of the Veteran’s VA disability compensation benefits on behalf of his son, M.R.C., is remanded. REASONS FOR REMAND This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, that denied the Appellant’s claim of entitlement to apportionment of the Veteran’s VA disability compensation benefits on behalf of their son, M.R.C. As a preliminary matter, the Board notes it does not appear the Agency of Original Jurisdiction (AOJ) has properly considered the provisions of either 38 C.F.R. § 3.450 or 38 C.F.R. § 3.451 in the context of this appeal. In a January 2017 statement of the case, the AOJ indicated the Appellant must show four things in order to obtain an apportionment: 1.) the Veteran and his dependent live apart; 2.) the dependent is a spouse or child of the Veteran; 3.) the Veteran does not contribute reasonable support for his dependent; and 4.) financial need on behalf of the dependent. This statement by the AOJ conflates the requirements for the two types of apportionments authorized under VA regulation. A “general” apportionment may be paid under the circumstances set forth in 38 C.F.R. § 3.450. More specifically, as it relates to this case, all or part of a veteran’s disability compensation benefits may be apportioned on behalf of the veteran’s child if the child is not in the veteran’s custody and the veteran is not reasonably discharging his or her responsibility for the child’s support. 38 U.S.C. § 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 to obtain a general apportionment under 38 C.F.R. § 3.450. VA regulation also provide for a “special” apportionment of disability compensation benefits between the veteran and his or her dependents based on 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. A special apportionment under 38 C.F.R. § 3.451 may be granted even if a veteran is reasonably contributing to his or her dependent’s support, if the requisite hardship is established. Thus, a claimant is not required to show both a lack of reasonable support and hardship to obtain either type of apportionment authorized by VA regulation. The AOJ should properly consider the separate provisions of 38 C.F.R. § 3.450 or 38 C.F.R. § 3.451 to ensure due process in this case. The Veteran has also failed to comply with reasonable requests for evidence regarding his income and expenses. In its April 2016 decision, the AOJ acknowledged it was unable to accurately assess the Veteran’s financial situation due to his failure comply with request for evidence. Thus, it is unclear how the AOJ arrived at its conclusion that an apportionment would result in undue hardship to the Veteran. The Board notes an apportionment award is not presumed to result in undue hardship unless it is 50 percent or more of a veteran’s monthly award. See 38 C.F.R. § 3.451. The Veteran must be advised that he must comply with requests for evidence regarding his income and expenses or VA will be forced to make a decision in this case within the parameters of the presumptions outlined in its regulations. Further, in a November 2016 written statement, the Appellant asserted the Veteran receives additional educational assistance benefits for M.R.C. Subsequent to certification of this matter to the Board, the Veteran’s Vocational Rehabilitation and Employment (VR&E) records were associated with the claims file. The Board finds these records should be reviewed by the AOJ in the first instance because they included VR&E payment records for the Veteran. See 38 C.F.R. § 20.1304(d). Although the available VR&E records do not clearly show the Veteran receives additional dependency allowance for M.R.C., the Board finds they do show the Veteran may potentially have more income than considered by the AOJ in its April 2016 decision, making efforts to verify the Veteran’s educational assistance benefits necessary. These efforts could also potentially lead to the Veteran receiving additional compensation benefits for dependency, as M.R.C. is not currently listed as a dependent of the Veteran’s compensation award. Finally, the Appellant has asserted on numerous occasions that the Veteran has inconsistently met his child support obligations. The Board notes that the Appellant should provide court records showing the Veteran is in arrears of his child support obligation if she intends to seek a general apportionment under 38 C.F.R. § 3.450 based on a failure by the Veteran to provide reasonable support for M.R.C., otherwise consideration in this case will be limited to a special apportionment under 38 C.F.R. § 3.451. The matter is REMANDED for the following action: 1. Advise the Veteran that he is eligible for additional dependency allowance for M.R.C., providing him a VA Form 21-686c to complete should he elect to seek dependency allowance for him. 2. Verify whether the Veteran has received educational assistance or VR&E payments during the appeal period (i.e. since April 2015). 3. Request a completed VA Form 21-0788 or other comparable financial statement from both parties, advising each party that failure to provide the requested financial statement could result in an adverse decision for him or her in this matter. The financial statements submitted should detail each party’s income and expenses throughout the appeal period (i.e. since April 2015) to the extent possible. 4. Ask both parties to submit any court records they may have regarding the Veteran’s child support obligation, to include, but not limited to, the initial child support order or any evidence regarding child support arrearage or payment history. 5. Reconsider the issue on appeal to include a separate analysis of the provisions of 38 C.F.R. § 3.450 (general apportionments) and 38 C.F.R. § 3.451 (special apportionments). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel