Citation Nr: 19130367 Decision Date: 04/17/19 Archive Date: 04/17/19 DOCKET NO. 18-20 913 DATE: April 17, 2019 ORDER Entitlement to a $150.00 per month apportionment of the Veteran’s VA disability compensation benefits on behalf of N.E. and J.E. is granted. FINDINGS OF FACT 1. The Veteran is not reasonably discharging his duty to support N.E. and J.E. 2. The Appellant has established a financial need of approximately $150.00 per month to provide for N.E. and J.E., and the evidence fails to establish a monthly apportionment in this amount will result in undue hardship to the Veteran. CONCLUSION OF LAW The criteria for a $150.00 per month apportionment of the Veteran’s VA disability compensation benefits on behalf of N.E. and J.E. have been met. 38 U.S.C. § 5307 (2012); 38 C.F.R. §§ 3.450, 3.451, 3.453 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Original jurisdiction for the appeal was transferred to the RO in St. Louis, Missouri, prior to certification to the Board. The Appellant is the Veteran’s former spouse and custodial parent of their two children, N.E. and J.E. Review of the claim file reveals the agencies of original jurisdiction (AOJ) complied with the applicable contested claims procedures prior to certification of this matter to the Board. Both parties received notice of the September 2017 decision, as well as the April 2018 statement of the case for this appeal. See 38 C.F.R. §§ 19.100, 19.101. The Veteran’s representative acknowledged reviewing the contents of the April 2018 substantive appeal in the Veteran’s March 2019 informal hearing presentation. See 38 C.F.R. § 19.102. The Board acknowledges the Appellant submitted evidence after this matter was certified to the Board that indicates the Veteran has been charged with multiple felonies; however, the Board finds this evidence is not relevant to the issue on appeal because there is no indication the Veteran’s VA disability compensation benefits have been reduced due to incarceration for a felony for a period in excess of 60 days. See 38 C.F.R. § 3.665. The additional evidence regarding the Veteran’s failure to pay child support is cumulative of evidence previously considered. Thus, the Board may proceed on the merits of this appeal without prejudice to either party. According to VA law, all or part of a veteran’s VA disability compensation may be apportioned on behalf of the veteran’s children if the children are not in the veteran’s custody and the veteran is not reasonably discharging his or her responsibility for the children’s support, otherwise known as general apportionment. 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 in order to obtain a general apportionment under 38 C.F.R. § 3.450; however, no apportionment will be made where the veteran is providing for dependents. 38 C.F.R. § 3.450(c). Here, the Appellant is the custodial parent of N.E. and J.E. Although the Veteran has a court-ordered child support obligation, the record clearly establishes he is not reasonably discharging his duty to support N.E. and J.E. The Appellant submitted evidence with her March 2016 apportionment claim that the Veteran was more than $16,000.00 in arrears on his child support obligation at that time. The child support arrearage has continued to accrue during the appeal period and is now more than $40,000.00. Thus, the Board finds the threshold requirements for a general apportionment have been established in this case. The issue that remains is what amount of the Veteran’s VA disability compensation benefits should be apportioned to the Appellant on behalf of N.E. and J.E. On her initial March 2016 VA Form 21-0788, the Appellant reported $2,800.00 in monthly income. Her monthly expenses are difficult to assess due to the manner in which she completed the form, i.e., duplicative numbers are entered in the columns for herself and the two children. It appears the Appellant intended to report approximately $2,490.00 in monthly expenses ($1,390.00 in general expenses plus $550.00 for school and childcare expenses for each child). The Appellant submitted an updated VA Form 21-0788 in April 2016, which clearly lists $2,000.00 in monthly income with $2,130.00 in monthly expenses. The Board finds the April 2016 financial statement more probative given the ambiguity in the March 2016 VA Form 21-0788. The Board acknowledges the Appellant submitted a third VA Form 21-0788 in January 2018; however, the Board finds this financial statement has no probative value, as it appears to include significantly inflated expenses. For instances, the Appellant listed $2,800.00 for “other expenses” without including any explanation for this figure, as explicitly required on the form. Thus, the Board will rely on the April 2016 VA Form 21-0788 in its analysis of the Appellant’s claim. Based on this financial statement, the Board finds the record establishes the Appellant has a financial need of approximately $150.00 per month to meet N.E.’s and J.E.’s needs. The Board further finds the evidence fails to establish a $150.00 per month apportionment on behalf of N.E. and J.E. will result in undue financial hardship to the Veteran. Although this amount is slightly more than the dependency allowance the Veteran receives on their behalf, the Board finds the record suggests the Veteran has income from other sources beyond his VA disability compensation. The Board notes the Veteran’s monthly child support obligation was calculated at $718.00, which constitutes more than 50 percent of his monthly VA disability compensation award. The Board further notes this amount was calculated well after the Veteran’s separation from service and initial award of VA disability compensation, since the record establishes the parties did not separate until December 2011. More importantly, the Veteran has not provided a statement of his monthly income and expenses at any point in the appeal, although this information was clearly requested by the AOJ. The Veteran’s failure to provide the requested information has frustrated VA’s efforts to gain insight into his financial situation, which essentially precludes a finding that a $150.00 will result in undue hardship to him since this amount falls below the threshold of a reasonable apportionment amount as outlined in 38 C.F.R. § 3.451. See 38 C.F.R. § 3.453 (indicating the rates of all apportionment will be determined under the criteria of 38 C.F.R. § 3.451). Yet, the Board finds an apportionment in excess of $150.00 per month is not warranted for the reasons discussed above. (CONTINUED ON NEXT PAGE) In sum, the Board finds the Veteran is not living with nor providing reasonable support for N.E. and J.E. The Appellant has established a financial need of approximately $150.00 per month to their needs. There is insufficient evidence to find this amount will result in undue hardship to the Veteran due to his failure to provide a statement of his finances. Thus, the Board finds a $150.00 per month apportionment of the Veteran’s VA disability compensation benefits to the Appellant on behalf N.E. and J.E. is warranted and, to that extent, her claim is granted. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel