Citation Nr: 20004488 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 18-23 238 DATE: January 21, 2020 ORDER An apportionment of the Veteran’s VA disability compensation benefits in the amount of $900.00 per month to the appellant is granted. FINDINGS OF FACT 1. The appellant is the Veteran’s spouse. 2. An apportionment was previously awarded to the appellant in December 1995, in the amount of $800.00 per month; which was terminated in August 2011. 3. Throughout the appeal period, the Veteran has not reasonably discharged his duty of support for the appellant. 4. The parties have agreed to a monthly apportionment in the amount of $900.00 of the Veteran’s disability compensation benefits to the appellant, and this amount does not result in undue hardship on the Veteran. CONCLUSION OF LAW The criteria for an apportionment of the Veteran’s VA disability compensation benefits in the amount of $900.00 per month to the appellant have been met. 38 U.S.C. § 5307 (2012); 38 C.F.R. §§ 3.450, 3.451 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1968 to October 1970. The appellant is the Veteran’s spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appellant requested a Travel Board hearing on her March 2018 VA Form 9, and she was scheduled for a hearing in January 2020. However, the record indicates that the hearing was cancelled and that the parties have reached an agreement. Accordingly, the request for a hearing is deemed withdrawn. As a preliminary matter, the Board notes that the attorney listed in the header has submitted a VA Form 21-22 for both parties. The Board recognizes the parties in this appeal are working in coordination with each other; however, apportionments fall into a category of claims known as simultaneously contested claims. The same representative cannot represent both parties in a simultaneously contested claim. Therefore, the Board has listed the attorney as the appellant’s representative since VA received her power of attorney first. Nevertheless, the Board finds its determination regarding representation does not prejudice either party, as this decision reflects an award of apportionment in an amount that has been specifically agreed upon by both parties. The Board also notes that the January 2018 statement of the case was provided to the Veteran’s previous representative of record, as well as the currently listed attorney for both parties. Thus, although it is unclear whether the Veteran was residing at the address to which the statement of the case was mailed (the address of the appellant and the Veteran’s address of record at that time), the Board finds that he had notice of its contents. An apportionment of the Veteran’s VA disability compensation benefits in the amount of $900.00 per month to the appellant is granted. The appellant seeks an apportionment of the Veteran’s VA compensation benefits. She asserts that she needs further financial support due to her deteriorating health and that she is experiencing financial hardship. See VA Form 9 dated March 2018. In December 1995, the appellant was awarded a monthly apportionment amount of $800.00 per month. This apportionment was terminated in August 2011, due to the Veteran’s status as a homeless veteran. 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 record reflects that the parties are married, but living separately. Additionally, the appellant contends that she is not receiving any financial support from the Veteran. Indeed, the Veteran has not alleged, nor provided any evidence to indicate that he provides financial support to the appellant. Thus, the Board finds the Veteran is not reasonably discharging his responsibility for the support of the appellant. 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 an apportionment to the appellant in the amount of $900.00 per month is warranted. Significantly, this amount has been agreed upon by both the appellant and the Veteran. See Veteran’s Statement dated January 7, 2020. The Board further finds this amount to be reasonable, as it constitutes about 28 percent of the Veteran’s monthly VA benefits. See 38 C.F.R. § 3.451 (establishing a basic range from 20 to 50 percent of beneficiary’s monthly payment as a reasonable apportionment amount with an apportionment in excess of 50 percent being presumed to result in undue hardship to the beneficiary); see also 38 C.F.R. § 3.453 (indicating the rate of apportionment of disability compensation will be determined under 38 C.F.R. § 3.451). In sum, the criteria for a monthly apportionment of the Veteran’s VA benefits to the appellant in the amount of $900.00 have been met and the appeal is granted. 38 U.S.C. § 5307; 38 C.F.R. § 3.450. 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.