Citation Nr: 20004464 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 19-15 117 DATE: January 21, 2020 ORDER The decision to terminate the apportionment of the Veteran’s VA benefits to the appellant was proper. FINDINGS OF FACT 1. The appellant and the Veteran were divorced effective April 6, 2017. 2. After April 6, 2017, the appellant was not entitled to an apportionment of the Veteran’s VA compensation benefits. CONCLUSION OF LAW The criteria for termination of the apportionment of the Veteran’s VA disability compensation benefits, effective May 1, 2017, were met. 38 U.S.C. §§ 101, 5307 (2012); 38 C.F.R. §§ 3.1, 3.50, 3.450, 3.451, 3.458 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1987 to January 2007. The appellant is the Veteran’s former spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a December 2017 decision by the Department of Veterans Affairs (VA) Regional Office (RO). As for the matter of representation, the record reflects that the Veteran revoked the Delaware Commission of Veterans Affairs as his power of attorney (POA) and representation in his appeal. The Board notes that a POA may be revoked at any time, and an agent or attorney may be discharged at any time. 38 C.F.R. § 14.631 (f)(1). As of June 30, 2018, Delaware Commission of Veterans Affairs POA is revoked, and the Veteran is currently unrepresented. In a March 2019 Report of General Information, the issue of an increased apportionment amount for the parties’ minor child was raised by the appellant. As this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2018). The decision to terminate the apportionment of the Veteran’s VA benefits to the appellant was proper. The appellant seeks reinstatement of her monthly apportionment of the Veteran’s VA compensation benefits, which was terminated upon notice of the parties’ divorce. The apportionment was terminated effective May 1, 2017. 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 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 (2018). 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. 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). By way of history, in a December 2011 decision, the RO granted an apportionment of the Veteran’s VA disability benefits in the amount of $551.00 per month to the appellant. The parties’ divorce became final on April 6, 2017. See April 2017 Final Decree. In October 2017, VA was notified of the divorce and terminated the appellant’s apportionment benefit, effective May 1, 2017. In December 2017, the appellant disagreed with the termination of her apportionment of the Veteran’s VA compensation benefits. As an aside, a waiver of all of the appellant’s indebtedness was granted in a Decision on Waiver of Indebtedness dated April 24, 2019 by the Committee on Waivers and Compromise. The facts are not in dispute that she received apportionment payments following the divorce decree. All of the appellant’s indebtedness has been waived. Thus, the issue as to which party was at fault for the continued payments of the apportionment is not before the Board. The remaining question is whether termination of the apportionment was proper. The Boards find that it was. Upon a divorce from a veteran, the ex-spouse loses status as a veteran’s spouse, including any potential entitlement to an apportionment of VA disability compensation, effective from the date of the divorce. See 38 U.S.C. § 101 (31) (2012); 38 C.F.R. §§ 3.1(j), 3.50 (2018); Marrero v. Gober, 14 Vet. App. 80, 82 (2000). A divorce severs the dependent relationship. Here, the appellant and Veteran were divorced in April 2017, after which the appellant was no longer eligible to receive an apportionment of the Veteran’s VA compensation benefits. Based on the foregoing, because the evidence demonstrates that the parties were divorced on April 6, 2017, the appellant is not entitled to an apportionment of the Veteran’s VA benefits as his spouse effective the date of divorce. Accordingly, the appeal is denied. MICHAEL E. 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.