Citation Nr: 21000571 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 18-28 064A DATE: January 5, 2021 REMANDED Entitlement to an apportionment of the Veteran’s VA benefits prior to August 29, 2014 is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1969 to January 1971. The appellant is the Veteran’s former spouse, who is seeking an apportionment of his Department of Veterans Affairs (VA) benefits for the period of November 8, 2012 (date of receipt of her claim) to August 29, 2014 (date of their divorce). This case is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 VA administrative decision, which denied the appellant an apportionment of the Veteran’s VA nonservice-connected pension benefits. The Board sent a letter to the appellant in August 2020 and to the Veteran in May 2020, offering them each the opportunity to appoint their own representative because The American Legion had revoked its power of attorney in May 2020 for each of them; at present, neither has responded by appointing a new representative. Entitlement to an apportionment of the Veteran’s VA benefits prior to August 29, 2014 The pertinent facts in this matter are: The appellant filed a claim in November 2012, requesting an apportionment of the Veteran’s VA benefits; she stated she was separated from the Veteran and homeless. (In a February 2015 statement, she asserted that she left the marital home in July 2012.) At that time, the Veteran was receiving monthly nonservice-connected pension benefits, as a single Veteran without dependents (evidently, because he reported in his May 2010 claim for benefits that he was divorced). After an inexplicable delay in the development of the apportionment claim during which the appellant twice wrote to the VA, in April 2013 and February 2014, that her circumstances had not changed except that she was in debt for rent, the RO requested financial information from the appellant and Veteran in January 2015. In February 2015, the VA received a copy of the divorce decree, reflecting the dissolution of their marriage on August 29, 2014; a copy of their marriage certificate, reflecting they were married in 1999; financial information for the appellant, showing only $190 in income from food stamps (in a statement she also asserted she was at the “mercy” of others for basic needs as she had been unable to work since 2007 due to a medical condition); and financial information for the Veteran, showing his monthly income from VA benefits and Social Security Administration benefits ($1,704 total) exceeded his monthly expenses ($1,400) (in a statement he also asserted that any apportionment of his pension would cause him a hardship). In a July 2015 “Special Apportionment” decision, the RO denied the appellant an apportionment of the Veteran’s VA benefits, stating that the appellant “has shown no hardship and the veteran claims of a potential hardship on his part.” The appellant disagreed with this decision, stating in September 2015 that her $190 food allowance per months was inadequate and she owed amounts for such needs as shelter, transportation, and health/medications (totaling approximately $500 per month). After the appeal was certified to the Board and the case was transferred to the Board in December 2018, an August 2019 Decision on Waiver of Indebtedness of the Committee on Waivers and Compromises granted the Veteran’s request for a waiver of recovery of an overpayment of nonservice-connected pension benefits in the amount of $67,612, for the period of December 2010 through June 2019; the overpayment was created after it was discovered that he had received more Social Security income than was previously counted for such period. Relevant provisions include 38 C.F.R. § 3.452(a), stating that an apportionment may be granted when the Veteran is not living with a spouse and a claim has been made by the spouse, and 38 C.F.R. § 3.458, stating that an apportionment may not be granted when the total benefit payable to the Veteran does not permit payment of a reasonable amount to any apportionee. (The latter provision applies to the basic benefit awarded to the Veteran and not to any additional allowance added to an award for dependents. See Hall v. Brown, 5 Vet. App. 294 (1993). Here, the Veteran was not in receipt of an additional dependency allowance on behalf of the appellant during their marriage.) In other words, where there would be an undue hardship on the Veteran, an apportionment is not available to his dependent. The two types of apportionment are general (under 38 C.F.R. § 3.450) and special (under 38 C.F.R. § 3.451). The former is available where the Veteran is not residing with his spouse and is not providing for her support; for this type, the spouse does not have to demonstrate hardship. The latter is available if the spouse shows hardship. However, for both types, the spouse cannot prevail if the apportionment causes hardship for the Veteran. From the record, it appears that the Veteran and appellant were not residing together in the years prior to their divorce on August 29, 2014 and that the Veteran was not providing for her support during that time. Therefore, it appears a general apportionment may be available to her for such period, provided that it would not have caused hardship for the Veteran. The (special) apportionment denied by the RO in July 2015 was based on financial information of the appellant and Veteran that was received in the year after their divorce was final, rather than on the circumstances of both parties from the time of their separation (purportedly in July 2012) to their divorce in August 2014. It is also notable that from the Veteran’s financial information in 2015, his income exceeded his expenses, yet the VA regional office) (RO) determined that an apportionment would cause him hardship. (It is also observed, as a result of the August 2019 Committee on Waivers decision, the Veteran was granted a waiver of recovery of an overpayment of pension benefits for a period that encompasses the period considered in this appeal). Considering the foregoing, the RO should elicit from both parties any additional information they are able to provide for the period from their separation to divorce. From all gathered evidence, the RO should conduct an audit concerning where each party stood financially for the period in question, before determining whether a general apportionment is warranted. The matter is REMANDED for the following action: 1. Furnish both parties another VA Form 21-0788 (Information Regarding Apportionment of Beneficiary’s Award) and ask each to provide any additional financial information for the period from the date of their separation to the date of their divorce on August 29, 2014. 2. Conduct an audit of the financial position of each party for the period from the date of their separation to the date of their divorce on August 29, 2014, and decide whether a general apportionment is warranted. If general apportionment provisions are not applicable (evidence shows the Veteran did provide support to the appellant during the period in question), consider whether a special apportionment is warranted. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.