Citation Nr: 21064058 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 16-23 033 DATE: October 18, 2021 ORDER The appeal to restore an apportionment of the Veteran's VA compensation benefits to the appellant is denied. FINDING OF FACT The Veteran and appellant were divorced in October 2014. CONCLUSION OF LAW The criteria to restore an apportionment of the Veteran's VA compensation benefits to the appellant 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 October 1976 to June 1977. The appellant is the Veteran's former spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 apportionment decision of the Department of Veterans Affairs (VA) Regional Office (RO) which terminated the appellant's apportionment effective November 2014. The claim as to the propriety of the termination of an apportionment of the Veteran's VA compensation benefits to the appellant The appellant contends that the termination of the apportionment was improper. She contends that the parties divorce decree states the apportionment is to be continued. 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. As a threshold matter, both types of apportionments (either "general" or "special" apportionment) are only 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 former spouse of the Veteran. An apportionment was awarded to her while the parties were separated and not living together. However, the divorce decree of record shows their divorce was finalized on October 15, 2014. The record shows that the apportionment to the appellant was terminated as of November 1, 2014. As the Veteran and appellant are no longer married, an apportionment of the Veteran's VA compensation benefits is not warranted. The Board recognizes the appellant's contention that the parties' divorce decree states an apportionment is to remain in place. The Judgment of Separate Maintenance cited by the appellant states that she "shall continue to receive all VA spousal benefits she may be entitled to as long as this Judgment of Separate Maintenance is in effect." Former spouses are not eligible to apportionments of Veteran compensation benefits, thus there is no benefit to which the appellant is entitled. Further, VA benefits are regulated by federal statute and claims for apportionment are not meant to enforce state court orders. Rather apportionment claims will only be granted when very specific requirements are met. In this case, the requirements for an apportionment under 38 C.F.R. §§ 3.450 and 3.451 have not been met because the Veteran and the appellant are no longer married. As a result, the appeal to overturn the termination of an 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.