Citation Nr: 20044035 Decision Date: 06/30/20 Archive Date: 06/30/20 DOCKET NO. 09-37 169 DATE: June 30, 2020 ORDER Entitlement to an apportionment of the Veteran's VA compensation benefits to the appellant for the benefit of the minor child C.W. is denied. FINDING OF FACT The Veteran has been reasonably supporting the minor child and the appellant has not shown that a hardship exists. CONCLUSION OF LAW The criteria for an apportionment of the Veteran’s VA compensation benefits have not been met. 38 U.S.C. § 5307; 38 C.F.R. § 3.450, 3.451, 3.452, 3.453, 3.458, 3.503. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1994 to May 1994 and from November 2004 to October 2005. The appellant is the Veteran’s former spouse and the mother of their minor child. This matter comes before the Board of Veterans’ Appeals from an August 2008 apportionment decision of the VA Regional Office (RO). The issue on appeal was previously remanded by the Board in November 2012, August 2016, May 2017, and January 2020 to afford the appellant a Board hearing and to comply with the contested claims procedures. The Board notes that the appellant was scheduled for a hearing in February 2019. Both parties were informed of the hearing, however, neither showed. Further, the RO has complied with the contested claims procedures. Thus, the Board’s directives were substantially complied with, such that further remand is not warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an apportionment of the Veteran's VA compensation benefits to the appellant for the benefit of the minor child C.W. The appellant seeks an apportionment of the Veteran’s VA compensation benefits for the benefit of the minor child C.W. She asserts that the Veteran has not been discharging his responsibility towards their child. At the outset, the Board notes that the most recent financial information in this case was submitted in October 2010. Requests for updated information have gone unanswered, most recently in February 2020. Given the lengthy history of this claim and the lack of response on part of both the Veteran and the appellant, the Board finds that further inquiry would be fruitless and a final decision on the merits made. 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. 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). Here, the appellant is the former spouse of the Veteran and the custodial parent of their minor child, C.W. The appellant has provided court orders and payment ledgers showing the Veteran was ordered to pay $350.00 per month in support and arrearage payments. A September 2009 ledger shows the Veteran paid $612.83 from July 2008 to July 2009. The Veteran stated in October 2010 that he has paid over $4,000.00 since March 2009. Further, the minor child was receiving approximately $160.00 per month from in Social Security Benefits from the Veteran. Since October 2010, no updated financial information has been provided by either the appellant or the Veteran. Although the appellant contends that the Veteran’s payments to her were inconsistent, the payment from Social Security is not. Thus, the available records show that the Veteran has reasonably contributed to the support of C.W. and the threshold requirements for a general apportionment have not been met. 38 U.S.C. § 5307(a)(2); 38 C.F.R. § 3.450(a)(1)(ii). Regarding a special apportionment, based on a review of the financial information of record, the appellant has not demonstrated a financial need, as her income exceeded her reported expenses. A May 2008 report of financial information showed the appellant’s income was $2,150.46 and her expenses totaled $1,725.90. As the appellant has not shown a hardship, a special apportionment is not warranted. See 38 C.F.R. § 3.451. The requirements for an apportionment under 38 C.F.R. §§ 3.450 and 3.451 have not been met because the Veteran is providing a reasonable amount of support for the minor child and the appellant has not shown a hardship. As a result, the claim of entitlement to apportionment of the Veteran’s VA disability compensation benefits must be denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Uller 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.