Citation Nr: 21063721 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-61 169 DATE: October 15, 2021 ORDER Entitlement to an apportionment of the Veteran's VA compensation benefits to the appellant, on behalf of the children A.A.D. and A.J.D. is denied. FINDINGS OF FACT 1. The Veteran is reasonably providing for the support of the children A.A.D. and A.J.D. 2. An apportionment of the Veteran's VA compensation benefits would cause the Veteran an undue hardship. CONCLUSION OF LAW The criteria for entitlement to 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2003 to July 2004. The appellant is the mother of the Veteran's children. This matter comes before the Board of Veterans' Appeals (Board) from a June 2017 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 children A.A.D. and A.J.D. This matter was previously remanded by the Board in June 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). Entitlement to an apportionment of the Veteran's VA compensation benefits to the appellant, on behalf of the children A.A.D. and A.J.D. The appellant seeks an apportionment of the Veteran's VA compensation benefits. She asserts that despite the court ordered support, 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 of the Veteran's minor children. The Veteran and the appellant have provided information that the Veteran provides $138.00 per month in court ordered support payments. Following the prior remand, both the Veteran and the appellant were asked to submit information regarding any arrearages in the court ordered payments. Neither party submitted any evidence of this. Thus, the Board concludes that the Veteran is providing adequate monthly support and a general apportionment is not warranted. 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 from August 2016 to August 2021. 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. Here, the Veteran reported income of $1,701.45 per month, including a dependency award for the minor children, in November 2015. At that time, he reported expenses of $2,366.00 per month, including $138.00 per month in child support. The Board notes that the child support paid by the Veteran is greater than the dependency amount he receives for them. Accordingly, based upon a review of the evidence of record, it cannot be said that an apportionment would present no undue hardship to the Veteran. The requirements for an apportionment under 38 C.F.R. § 3.450 are not met because the Veteran is reasonably providing for the support of the minor children and the requirements for an apportionment under 38 C.F.R. § 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 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, 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.