Citation Nr: 21062477 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 19-30 034 DATE: October 7, 2021 ORDER Prior to June 2019, an apportionment of the Veteran's VA compensation benefits to the appellant, on behalf of the child L.H. is denied, however, since June 2019, an apportionment of the Veteran's VA compensation benefits to the appellant, on behalf of the child L.H. is granted. FINDINGS OF FACT 1. L.H. is the Veteran's biological child. 2. The appellant has shown a hardship throughout the entire period on appeal. 3. Prior to June 2019, the award of an apportionment of the Veteran's VA compensation benefits would cause the Veteran an undue hardship. 4. Since June 2019, an apportionment in the amount of 20 percent of the Veteran's VA compensation benefits would not cause the Veteran an undue hardship. CONCLUSION OF LAW The criteria for an apportionment of the Veteran's VA compensation benefits prior to June 2019 have not been met; however, the criteria for an apportionment of 20 percent of the Veteran's VA compensation benefits since June 2019 have 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 December 1986 to November 1990, January 1991 to March 1991, December 2004 to June 2006, and March 2007 to September 2011. The appellant is the mother of the Veteran's child. This matter comes before the Board of Veterans' Appeals (Board) from a January 2019 apportionment decision of the VA Regional Office (RO) which denied entitlement to an apportionment of the Veteran's compensation benefits to the appellant, on behalf of the minor child L.H. This matter was previously remanded by the Board in April 2020 for compliance with the contested claims procedures and further development. A review of the record indicates that 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). An entitlement to an apportionment of the Veteran's VA compensation benefits to the appellant, on behalf of the child L.H. 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 and that she is experiencing financial hardship. 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 mother and custodial parent of L.H., the Veteran's minor child. For the entire period on appeal, the Veteran claims to have been providing $150.00 per month to the appellant. The appellant claims that the Veteran is not providing any support. The Veteran was asked to provide evidence of the support but did not. The appellant provided a statement that there were no current or past court cases involving the Veteran and appellant, thus there were no court ordered support payments. Thus, the Board is unable to conclude that the Veteran is providing any support to the appellant and the threshold requirements for a general apportionment have been met. 38 U.S.C. § 5307(a)(2); 38 C.F.R. § 3.450(a)(1)(ii). However, the Board further finds that, given the reported income and expenses of the Veteran, an apportionment from his VA benefits prior to June 2019 would result in undue financial hardship for him, seriously undermining his ability to afford the basic necessities of life. Prior to June 2019, the record reflects that the Veteran was 70 percent service-connected and was paid for one dependent, L.H. During that period, the Veteran's income was $1,566.48 and his expenses were $2,085.00. As a result, his monthly expenses exceeded his monthly income. However, the Veteran was granted a TDIU effective June 2019. At that time his income increased to $3,352.41 per month. There is no evidence that the Veteran's expenses increased, thus, from June 2019 the Veteran's income exceeded his expenses and a hardship is not shown. Accordingly, based upon a review of the evidence of record, it cannot be said that an apportionment prior to June 2019 would present no undue hardship to the Veteran. However, since June 2019, the record does not show that an apportionment of the Veteran's VA compensation would cause him an undue hardship. 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 January 2018. 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 role of VA is to make a determination as to whether an apportionment would constitute a financial hardship to both the appellant and the Veteran, based on their reported income and expenses. As noted above, prior to June 2019, an apportionment of the Veteran's VA compensation benefits would cause him an undue hardship, however, since June 2019, the Veteran would not suffer a hardship if an apportionment were granted. Prior to June 2019 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 prior to June 2019, and for the reasons explained above, the Board has determined that an apportionment is not warranted for this time period as it would constitute undue financial hardship to him. However, from June 2019, an apportionment in the amount of 20 percent of the Veteran's VA compensation award is warranted. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Uller, 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.