Citation Nr: 20023099 Decision Date: 04/03/20 Archive Date: 04/03/20 DOCKET NO. 13-32 673 DATE: April 3, 2020 ORDER An apportionment of the Veteran’s VA compensation benefits on behalf of his child, effective from August 18, 2010 until the child’s graduation from high school on June 14, 2012, is denied.   FINDING OF FACT Throughout the appeal period, the Veteran reasonably discharged his duty of support for his child, and the evidence fails to establish the child experienced hardship due to inadequate financial support from the Veteran. CONCLUSION OF LAW The criteria for entitlement to an apportionment of the Veteran’s VA disability compensation benefits have not been met. 38 U.S.C. § 5307; 38 C.F.R. §§ 3.450, 3.451. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1989 to August 1995, and from January 1997 to June 1998. The appellant (who is also a veteran) is his former spouse and mother of his two children. This matter comes before the Board on appeal from a June 2011 decision. In July 2013, the appellant participated in a RO hearing, and in January 2017, the appellant, the Veteran, and the Veteran’s current wife participated in a Board hearing. In November 2017, the Board remanded the appeal for further development. This claim is subject to the special provisions governing simultaneously contested claims. See 38 C.F.R. §§ 19.100-19.102. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and the Veteran, and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An apportionment of the Veteran’s VA compensation benefits on behalf of his child, effective from August 18, 2010 until the child’s graduation from high school on June 14, 2012. Background and Appeal Time Period The appellant in this case, the Veteran’s former spouse and mother of his two children, is seeking an apportionment of the Veteran’s VA compensation benefits for the time period from which she filed the instant claim, August 2010, until June 2012, when their youngest child graduated from high school. See DRO Hearing Testimony dated July 2013; High School Diploma dated June 14, 2012. She has reported that their youngest child did not pursue further education upon his graduation from high school; thus, he was no longer a minor child for whom an apportionment could be made as of the date of graduation, as he had previously turned 18 years old on October [REDACTED], 2011. See 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.667. In general, the term “child of the Veteran” includes an unmarried person who is under the age of 18 years; or who, before reaching the age of 18 years, became permanently incapable of self-support; or who after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 C.F.R. § 3.57. Thus, as the child reached 18 years of age in October 2011 and continued to attend high school until June 2012, the Board will consider an award of apportionment prior to his date of graduation. Legal Criteria 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. 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). Analysis Here, the appellant was the primary custodial parent of the child prior to his 18th birthday; therefore, he was not in the Veteran’s custody. See Marriage Settlement Agreement dated July 2000. However, the record establishes the appellant received monthly Social Security Administration (SSA) payments from the Veteran in the amount of $527.00, which were greater than the court-ordered child support payments of $300.00 per month. See SHARE Print Screen dated October 3, 2011; Marriage Settlement Agreement dated July 2000. There is no evidence in the record to suggest that the appellant was not receiving these SSA payments during the period on appeal. In fact, the appellant confirmed that she received $527.00 per month from the Veteran’s SSA benefits on behalf of their youngest child. See Statement in Support of Claim dated May 2011. The Board further notes that the appellant has indicated that the Veteran failed to make child support payments. However, no official documentation has been provided to corroborate these contentions, aside from a January 2007 letter from the Lane County District Attorney’s Office in Eugene, Oregon, which indicated that arrearages may have accrued at that time, which was prior to the filing date of the current claim. Additionally, the record reflects that the Veteran made additional cash payments to the appellant for the care of their youngest child on an occasional basis. See Appellant’s Statement in Support of Claim dated January 2017; January 2017 Board Hearing Transcript p. 5. Thus, the Board finds a general apportionment is not warranted in this case because the Veteran provided monthly support for the child through his SSA benefits. Having determined that the appellant is not entitled to a general apportionment, the Board must now determine whether entitlement to a special apportionment is established. After a review of all the evidence, the Board finds that a special apportionment is not warranted. In this regard, the Board finds that the appellant has not demonstrated financial hardship. The Board finds the evidence fails to establish the child experienced hardship due to inadequate financial support from the Veteran during the period on appeal. The appellant submitted a Financial Status Report in May 2011, which indicated that her monthly expenses did not exceed her VA compensation income, which was $2,772.00 per month, plus the monthly SSA payments provided by the Veteran. The Board acknowledges that she submitted a letter from a treatment provider in July 2011, which noted that she experienced financial hardship due to a lack of support from the Veteran. See July 2011 Letter from Dr. M.H. However, based upon her reported finances, she had about $448.00 remaining each month after expenses. Accordingly, the Board finds a special apportionment is also not warranted in this case because the evidence fails to establish the appellant experienced hardship due to inadequate financial support from the Veteran during the period on appeal. The Board notes that the Veteran did not submit a detailed accounting of his financial situation for the period on appeal. However, at the January 2017 Board hearing, he testified that he was financially stable in 2010, but was not living above his means. See January 2017 Board Hearing Transcript p. 7. An apportionment of an amount equal to the minimum 20 percent of his benefits would have ranged between $550.00 and $600.00 throughout the appeal period, which would have been greater than the court-ordered child support amount of $300.00. This amount is also significantly higher than the amount of dependency benefits that the Veteran received on behalf of the child prior to his 18th birthday in October 2011, which was about $101.00 per month. Additionally, the Board finds that such a deduction from his monthly income would likely impact his ability to manage his monthly expenses, based upon his statements at the Board hearing. As such, the Board finds that an apportionment of the Veteran’s compensation benefits would result in an undue hardship. 38 C.F.R. § 3.451. In sum, the Board finds the appellant has failed to establish the threshold requirements for either type of apportionment authorized by VA regulation. A general apportionment under 38 C.F.R. § 3.450 is not warranted because the Veteran reasonably discharged his duty of support for the child by making monthly SSA payments in an amount greater than the additional dependency allowance he received on the child’s behalf each month. Furthermore, the requirements for a special apportionment under 38 C.F.R. § 3.451 have not been met because the appellant has not established hardship due to inadequate financial support from the Veteran for the period on appeal. In reaching this conclusion, the Board acknowledges the appellant seeks to have additional support payments taken out of his monthly VA disability compensation benefits for the period on appeal. However, it would be inconsistent with VA regulation to grant an apportionment of the Veteran’s benefits when he was already making consistent monthly payments though SSA. The evidence otherwise establishes the appellant had sufficient income to avoid hardship during this time. As a result, the claim of entitlement to apportionment of the Veteran’s VA disability compensation benefits must be denied. RYAN T. KESSEL 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.