Citation Nr: 19166147 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 11-16 522 DATE: August 27, 2019 ORDER The decision to grant an apportionment of the Veteran’s VA benefits in the amount of $300 per month to the appellee (D.C., Veteran’s former spouse), for the period from June 1, 2009, to May 31, 2010, was proper. FINDING OF FACT 1. For the relevant period of the claim, the appellee demonstrated financial hardship as his expenses generally exceed his income. 2. For the relevant period of the claim, the Veteran did not demonstrate financial hardship as her income generally exceeded her expenses. CONCLUSION OF LAW The decision to grant an apportionment of the Veteran’s VA benefits in the amount of $300 per month to the appellee, for the period from June 1, 2009, to May 31, 2010, was proper. 38 U.S.C. § 5307; 38 C.F.R. § 3.450, 3.451, 3.452, 3.453, 3.458, 3.503, 3.667. REASONS AND BASES FOR FINDING AND CONCLUSION The parties to this appeal are the Veteran, who is the appellant, and his former spouse (D.C.), who is the appellee. The Veteran served on active duty from August 1978 to September 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an September 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Petersburg, Florida. The Detroit, Michigan RO has jurisdiction of the current appeal. By way of procedural history, D.C. filed a claim for apportionment of the Veteran’s VA benefits in May 2009. The September 2009 decision on appeal granted an apportionment of the Veteran’s VA disability benefits in the amount of $300 per month, effective June 1, 2009. In November 2009, the Veteran submitted a notice of disagreement with the September 2009 decision, and contested the apportionment grant. A statement of the case was issued in April 2011, and the Veteran submitted a timely substantive appeal (VA Form 9) in June 2011. The record reflects that the Veteran and D.C. were granted a divorce in May 2010. As such, the RO terminated the apportionment of the Veteran’s VA benefits to the appellee, effective June 1, 2010. Based on the foregoing, the relevant period of the claim is from June 1, 2009, to May 31, 2010. In December 2015, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) in order to ensure compliance with contested claim procedures. This was accomplished, and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Propriety of apportionment of the Veteran’s VA benefits The Veteran appeals the apportionment of his VA benefits in the amount of $300 per month to D.C. 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. More 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 or children, and the Veteran is not reasonably discharging his responsibility for the spouse’s or children’s support. 38 U.S.C. § 5307(a)(2); 38 C.F.R. § 3.450(a)(1)(ii). No apportionment will be made where the Veteran is providing for his dependents. 38 C.F.R. § 3.450(c). 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 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 of 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. A veteran cannot prevail on a claim of hardship when he or she is receiving additional benefit for a dependent and the apportioned amount is no more than that additional benefits. See Hall, 5 Vet. App. at 295. Both types of apportionments (either “general” or “special” apportionment) are payable to a spouse or a dependent. 38 U.S.C. § 5307(a)(2); 38 C.F.R. §§ 3.450(a)(1)(ii), 3.451. A Veteran’s benefits may be apportioned if a veteran is not residing with his spouse or children, and a claim for apportionment is filed for or on behalf of the spouse or children. 38 C.F.R. § 3.452(a). 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). The “benefit-of-the-doubt rule” rule does not apply in apportionment cases because it is impossible to give the benefit of the doubt to a veteran and a claimant simultaneously. Elias v. Brown, 10 Vet. App. 259 (1997). As noted above, the September 2009 decision on appeal granted a special apportionment of the Veteran’s VA disability benefits in the amount of $300 per month, effective June 1, 2009. Accordingly, the Board will evaluate whether the grant of such special apportionment was proper, and there is no need to evaluate whether a general apportionment would have been warranted. For the reasons set forth below, the Board finds that, for the relevant period on appeal, the appellee demonstrated financial hardship, and the Veteran did not demonstrate that a grant of the apportionment caused him undue financial hardship. Therefore, a special apportionment of the Veteran’s VA benefits to the appellee in the amount of $300 per month, for the period from June 1, 2009, to May 31, 2010, was proper. In support of his apportionment claim, the appellee submitted an August 2009 VA Form 21-4138 on which he reported total income of $547, total monthly expenses of $656. Accordingly, the appellee’s monthly expenses exceeded his income by approximately $109. Based on the foregoing, the Board finds that the appellee demonstrated financial hardship as his reported expenses monthly generally exceeded his income during the relevant period of the claim. The Veteran, on the other hand, did not demonstrate that a grant of the apportionment in the amount of $300 per month caused her undue financial hardship. On her VA Form 5655, the Veteran reported total monthly income of $3,846, and total monthly expenses of $3,453.64. Accordingly, the Veteran’s monthly income exceeded her expenses by approximately $392.36, which is more than the $300 apportioned benefits to the appellee. The Board notes that the total monthly income reported by the Veteran on her VA Form 5655 appears to be net of the $300 in apportioned benefits, because the Veteran’s VA monthly compensation rate after deducting the $300 apportionment was $2,523, and her Social Security Administration (SSA) disability income was $1,119.40 as of December 2008. See, e.g., September 2009 VA letter; January 2010 SSA inquiry. Therefore, it appears that the Veteran’s net income, after deducting the $300 apportionment, was $392.36. However, even if the Veteran’s total monthly income $3,846 was before the $300 apportionment deduction, the Veteran’s net income, after deducting the $300 apportionment, would be $92.36. Accordingly, the Board finds that the Veteran has not demonstrated financial hardship as a result of the $300 apportionment grant as her income generally exceed her expenses after the apportionment deduction. Based on the foregoing, the Board finds that the appellee demonstrated financial hardship, and the Veteran did not demonstrate that a grant of an apportionment of her VA disability compensation benefits in the amount of $300 per month, for the period from June 1, 2009, to May 31, 2010, caused her undue financial hardship. As such, and given the above-referenced evidence relating to the relative financial situations of the Veteran the appellee, the Board finds that the AOJ grant of an apportionment of the Veteran’s VA disability compensation benefits to the appellant in the amount of $300 per month for the period from June 1, 2009, to May 31, 2010, was proper, and the appeal is therefore denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Ragheb, 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.