Citation Nr: 21002065 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 09-46 610A DATE: January 12, 2021 ORDER Entitlement to an apportionment of the Veteran’s VA disability compensation benefits is denied. FINDINGS OF FACT 1. J.I.E.B. and J.C.S.B. are the Veteran’s biological children. 2. The appellant had primary physical custody of J.I.E.B. prior to August [REDACTED], 2009, and of J.C.S.B. prior to February 3, 2014. 3. The Veteran had primary physical custody of J.C.S.B. beginning on February 3, 2014. 4. The appellant does not have legal standing to receive an apportionment on the children’s behalf beyond their 18th birthdays. 5. For the relevant appeal periods, the Veteran was reasonably discharging his duty of support for the parties’ children. 6. An apportionment of the Veteran’s VA benefits would create an undue financial hardship to the Veteran. CONCLUSION OF LAW The criteria for an apportionment of the Veteran’s VA compensation benefits have not been met. 38 U.S.C. § 5307 (2012); 38 C.F.R. §§ 3.450, 3.451, 3.452, 3.453, 3.458, 3.503, 3.667 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1966 to September 1969. The appellant is the Veteran’s former spouse, and mother of the parties’ children, J.I.E.B. and J.C.S.B. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO). On her December 2009 VA Form 9, the appellant requested a Travel Board hearing. In July 2010, the appellant indicated that she withdrew her hearing request. See 38 C.F.R. § 20.704 (e) (2020). The Board previously remanded this matter in March 2015 and December 2018. Additionally, there is no indication that a copy of the appellant’s VA Form 9 was provided to the Veteran. However, the content of the substantive appeal was general in nature and did not contain additional argument. Thus, the Board will proceed with adjudication of the appeal. Entitlement to an apportionment of the Veteran’s VA disability compensation benefits is denied. 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. 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. The record reflects that both children were in the custody of the appellant at the time of filing of the claim. J.I.E.B. turned 18 on August [REDACTED], 2009, after which time she enrolled in college to pursue further education following her graduation from high school. See Report of School Attendance dated June 2011. Thus, she would still be considered a minor for the purposes of this claim until the date of her college graduation in September 2013. See 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.667. Additionally, a February 2014 court order reflects that the younger child, J.C.S.B. was in the primary physical custody of the Veteran from that date presumably until she reached the age of 18. The Veteran has submitted evidence that J.C.S.B. also enrolled in college to pursue further education following her graduation from high school. See Report of School Attendance dated August 2015. Thus, she would still be considered a child for the purposes of this claim until the date of her college graduation in June 2019. The Board notes that the current claim was filed by the appellant on behalf of her two children. Although J.I.E.B. and J.C.S.B. would each be deemed a “child” for VA purposes following their 18th birthdays, they were no longer minor children in the custody of the appellant for those portions of the appeal period. Thus, it is they who would be potentially eligible to personally receive any apportionment awarded for those periods of time, and it is they to whom such payment would potentially be made (and not to the appellant). The law requires that an appellant who files an appeal must have standing. For an appellant to have standing, that individual must demonstrate that he or she has been injured and has a “personal stake in the outcome of the controversy.” Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962); Belton v. Principi, 17 Vet. App. 209, 211 (2003); Redding v. West, 13 Vet. App. 512, 514 (2000). As the children reached the age of majority during the appeal period (albeit still pursuing university instruction) and were presumably competent, the appellant was no longer their custodian, and any award of apportionment would be paid to them for these periods of time. 38 C.F.R. §§ 3.403, 3.854. Thus, the appellant does not have legal standing to receive payment of an apportionment on their behalf beyond their 18th birthdays. As such, the Board finds that the appellant is not entitled to an apportionment for the period from August 2009 through September 2013 for J.I.E.B., nor for the period from February 2014 (when the Veteran became the primary physical custodian) through June 2019 for J.C.S.B. Thus, the Board will evaluate the appellant’s apportionment claim for the period prior to August [REDACTED], 2009 for J.I.E.B., as well as prior to February 3, 2014 for J.C.S.B. All or part of a veteran’s VA benefits may be apportioned on behalf of the veteran’s children if they are not in the veteran’s custody and the veteran is not reasonably discharging his or her responsibility for child support, otherwise known as general apportionment. 38 U.S.C. § 5307(a)(2); 38 C.F.R. § 3.450(a)(1)(ii). It is not necessary for the claimant to establish the existence of hardship to obtain a general apportionment under 38 C.F.R. § 3.450, but no apportionment will be made where the veteran is providing for dependents. 38 C.F.R. § 3.450(c). Here, the appellant was the primary custodial parent of J.I.E.B. until her 18th birthday in August 2009, and of J.C.S.B. until a court-ordered change of custody took place in February 2014. See Second Supplemental Final Judgment of Dissolution of Marriage dated February 2014. Therefore, they were not in the Veteran’s custody for the relevant appeal periods. However, the record establishes the Veteran made reasonably consistent child support payments to the appellant prior to the termination of the child support award in February 2014. Indeed, several lump sum payments were made in 2008, after which consistent payments were made between 2011 and 2013. See Duval County Family Law Case History dated December 17, 2018. Thus, the Board finds a general apportionment is not warranted in this case because the Veteran made consistent and reasonable child support payments for the care and welfare of J.I.E.B. and J.C.S.B. during the applicable appeal periods. VA regulations provide for a special apportionment of VA benefits between the veteran and his or her dependents based on the facts in the individual case where hardship is shown to exist, if it does not cause undue hardship to the other persons in interest. 38 C.F.R. § 3.451. In determining the basis for a special apportionment, consideration will be given to such factors as: 1) the amount of VA benefits payable; 2) other resources and income of the veteran and those dependents in whose behalf apportionment is claimed; and 3) special needs of the veteran, his or her dependents, and the apportionment claimants. Id. 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 November 2008. See VA Form 21-0788 dated November 2008. 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. 0 After a review of the evidence, the Board finds that a special apportionment of the Veteran’s VA compensation benefits is not warranted. The Board acknowledges that the Veteran received an additional dependency allowance for each child during the respective appeal periods. However, the record reflects that he was making consistent child support payments that ranged between $400.00 and $500.00. As these payments are higher than the monthly dependency allowance received by the Veteran, the Board finds that a special apportionment would result in undue financial hardship to him. Indeed, in November 2008, the Veteran reported a monthly financial deficit of about $1,500.00, as well as a limited income. Furthermore, it is reasonable to assume that the dependency allowance received by the Veteran was used to assist in making the monthly child support payments to the appellant. Thus, any additional apportionment from his VA benefits would result in undue financial hardship for him. 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 was reasonably discharging his duty of support for the parties’ children by making child support payments in an amount greater than the additional dependency allowance he received on their behalf each month. The requirements for a special apportionment under 38 C.F.R. § 3.451 have not been met because the Veteran has demonstrated financial hardship which outweighs that reported by the appellant for the relevant appeal periods. As a result, the claim of entitlement to apportionment of the Veteran’s VA disability compensation benefits must be denied. MICHAEL 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.