Citation Nr: 21065441 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 16-60 096 DATE: October 26, 2021 ORDER The decision to grant an apportionment of the Veteran's VA disability compensation benefits to the appellee was proper. FINDING OF FACT The appellee demonstrated she experienced financial hardship and the apportionment did not result in undue hardship to the Veteran. CONCLUSION OF LAW The decision to grant an apportionment of the Veteran's VA benefits to the appellee was proper. 38 U.S.C. § 5307; 38 C.F.R. §§ 3.451, 3.452, 3.453, 3.458, 3.503. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1987 to December 2010. The appellee is the Veteran's former spouse. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2015 apportionment decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which awarded an apportionment of the Veteran's monthly VA benefits to his former spouse. A notice of disagreement (NOD) was received in November 2015; a statement of the case (SOC) was issued in November 2016; and a VA Form 9 was submitted in November 2016. The Veteran and his current wife testified in this matter before the undersigned Veterans Law Judge in August 2019. The Board remanded the matter in October 2019 and the matter had been returned for further adjudication. The Board attempted to send both parties a copy of the Board docketing letter in in April 2021; however, the Board notes that the letter sent to the appellee was sent to the Veteran's address. Nonetheless, as there is no indication that any notice deficiency reasonably affects the outcome of this case, the Board finds that any failure is harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran appeals the apportionment of his VA benefits to the appellee. He asserts that the apportionment should not be awarded due to the amount of support he was providing her. VA regulations provide for two types of apportionments. The first type is a "general" apportionment. A general apportionment may be paid under the circumstances set forth in 38 C.F.R. § 3.450. More specifically, 38 C.F.R. § 3.450(a)(1)(ii) provides that an apportionment may be paid if the Veteran's spouse is not residing with him and the Veteran is not reasonably discharging his responsibility for the spouse's support. 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 of apportionment is a "special" apportionment which may be paid under the circumstances set forth in 38 C.F.R. § 3.451. That regulation provides that, without regard to any other provision regarding apportionment, where hardship is shown to exist, compensation may be apportioned between the Veteran and his or her 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 or her dependents and the apportionment claimants. 38 C.F.R. § 3.451 provides further that apportionment of more than 50 percent of the Veteran's benefits is ordinarily considered to constitute undue hardship on him or her while apportionment of less than 20 percent of his or her benefits is ordinarily considered insufficient to constitute a reasonable basis for any apportionment. For the reasons set forth below, the Board finds that, for the relevant period on appeal, the appellee has shown she was the Veteran's estranged spouse, has demonstrated financial hardship, and the Veteran did not demonstrate that a grant of the apportionment caused him undue financial hardship. Therefore, a special apportionment of the Veteran's VA benefits to the appellee was proper. In support of her apportionment claim, the appellee provided supporting documents, to include an August 2012 VA Form 21-0788 (Information Regarding Apportionment of Beneficiary's Award). She reported $698.00 in monthly income from Social Security. She reported $1,410.00 in monthly expenses. She noted that the Veteran was not contributing any amount toward her. In a February 2014 telephone call, the appellee reported she was experiencing financial hardship noting she had received a notice to vacate her home and had no gas at her home. She was in such financial distress that she requested the claim be expedited. In March 2014 the appellee's Social Security benefit was decreased to $598.00 per month. In July 2014, the appellee notified the VA that she was homeless. In October 2014, the Veteran submitted a VA form 21-0788 that indicated he provided the appellee $740.00 a month. This would bring the appellee's total monthly income to approximately $1,350.00. The appellee's monthly expenses outweighed her monthly income. Any support the Veteran was providing was not enough to support the appellee's rather modest monthly expenses as reported in her August 2012 VA Form 21-0788. Based on the foregoing, the Board finds that the appellee has demonstrated financial hardship as her reported monthly expenses generally exceeded her income during the relevant period of the claim. In the Veteran's October 2014 VA Form 21-0788 he indicated a monthly income from retirement of $1970.00. The Board notes the Veteran was also in receipt of a monthly VA disability award of approximately $1,890.00 bringing his total monthly income to $3,860.00. He reported monthly expenses of approximately $2,660.00. Therefore, the Veteran's monthly income exceeded his monthly expenses. Accordingly, the Board finds that the Veteran has not demonstrated financial hardship as a result of the apportionment grant as his income has generally exceeded his expenses even after the apportionment deduction. Further, as referenced, the applicable regulation states that "[o]rdinarily, 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." See 38 C.F.R. § 3.451. To this point, the Board notes that the apportionment granted was never more than $144.00 per month and was far from reaching 50 percent of the Veteran's monthly VA disability compensation. In light of the above, the Board finds that the criteria for the assignment of an apportionment was warranted and proper. (Continued on the next page) Based on the foregoing, the Board finds the appellee has demonstrated financial hardship, and the Veteran has not demonstrated that the grant of an apportionment of his VA disability benefits caused him undue financial hardship. Therefore, the appellee meets the requirements for a special apportionment. As such, the Veteran's appeal is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gastoukian, Kelly 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.