Citation Nr: 20060495 Decision Date: 09/15/20 Archive Date: 09/15/20 DOCKET NO. 19-17 138 DATE: September 15, 2020 ORDER Entitlement to an apportionment of the Veteran's VA compensation benefits to the appellant for the benefit of the minor child D.B. is denied. FINDING OF FACT The Veteran is providing reasonable monthly support to the appellant, for the benefit of the minor child, D.B., and any additional apportionment would cause him an undue hardship. CONCLUSION OF LAW The criteria for entitlement to an apportionment of the Veteran’s VA compensation benefits, to the appellant for the benefit of the minor child D.B., 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 August 1989 to August 1992. The appellant is the grandmother and custodian of D.B., the Veteran’s child. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 apportionment decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied the appellant’s claim for an apportionment of the Veteran’s VA compensation benefits. Entitlement to an apportionment of the Veteran's VA compensation benefits to the appellant for the benefit of the minor child D.B. The appellant seeks an apportionment of the Veteran’s VA compensation benefits. She asserts that the Veteran has not been discharging his responsibility towards his son, D.B. 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 grandmother of D.B. and his custodian. Information provided by the appellant shows that the Veteran has paid approximately $165.00 per month since 2017. Thus, the Board finds that the Veteran is reasonably discharging his responsibility for the support of the child D.B., on behalf of whom the apportionment is sought, 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 demonstrated a financial need, as her expenses exceeded her reported income. In a July 2016 VA 21-0788 the appellant indicated her income totaled $3,023.00 per month and her expenses totaled $4,485.00 per month. However, the applicable regulations provide for consideration not only for her needs but also those of the Veteran. See 38 C.F.R. § 3.451. The Board further finds that, given the reported income and expenses of the Veteran, an apportionment from his VA benefits would result in undue financial hardship for him, seriously undermining his ability to afford the basic necessities of life. The record reflects that he is currently 60 percent service-connected and is paid at a rate that includes one dependent, D.B. While the Veteran’s income and expenses were last reported in March 2017, the evidence indicates that he has income of $1,124.00 per month. At that time, he reported monthly expenses of $1,565.00 per month. As a result, his monthly expenses appear to exceed his monthly income, as there is no documentary evidence to suggest that he has any income in addition to his VA benefits. The Board notes that the appellant contends and has provided proof of a substantial arrearage owed by the Veteran. However, VA has a statutory duty to ensure that an apportionment of the Veteran’s benefits does not result in an undue hardship on the Veteran and cannot create a hardship even when a substantial arrearage is shown. Accordingly, based upon a review of the evidence of record, any apportionment of the Veteran’s VA compensation benefits would cause an undue hardship to the Veteran. The requirements for an apportionment under 38 C.F.R. §§ 3.450 and 3.451 have not been met because it would result in a financial hardship on the Veteran. In reaching this conclusion, the Board is sympathetic to the appellant in that, as noted, she clearly demonstrated a financial need during the relevant period. However, the Board emphasizes that the financial need of the appellant is not the sole consideration. Rather, the determination turns on whether an apportionment of the Veteran’s VA disability compensation would cause undue hardship to the Veteran. See 38 C.F.R. § 3.451. And here, in light of the Veteran’s income and expenses, and for the reasons explained above, the Board has determined that an apportionment is not warranted as this would constitute undue financial hardship to him. As a result, the claim of entitlement to apportionment of the Veteran’s VA disability compensation benefits must be denied. MICHAEL E. KILCOYNE 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.