Citation Nr: A21016480 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 200425-79880 DATE: October 7, 2021 ORDER Entitlement to a 20 percent apportionment of the Veteran's monthly VA disability compensation award to the appellant is granted. FINDINGS OF FACT 1. The Veteran and the appellant were married in July 2014 and were separated when the appellant filed her claim in January 2020. 2. The parties lived at separate addresses from the filing of the apportionment claim in January 2020 until their divorce in August 2020. 3. The preponderance of the evidence weighs in favor of the finding that the Veteran did not reasonably discharge his responsibility for the appellant's support from January 2020 through their divorce on August 7, 2020. CONCLUSION OF LAW The criteria for an apportionment of the Veteran's benefits in favor of the appellant have been met. See 38 U.S.C. §§ 101, 5107(a), 5307; 38 C.F.R. §§ 3.57, 3.450. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 2012 to November 2017. The appellant is the Veteran's former spouse. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2020 decision of the Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for to seek review of VA decisions. This decision has been written consistent with the new AMA framework. In April 2020, the appellant appealed this issue to the Board under the Direct Review lane by submitting a notice of disagreement under the AMA. See 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). Accordingly, the Board is limited to review of the evidence in the record up and until the date of the decision on appeal. The Board cannot consider any evidence submitted after that time. 1. Entitlement to a 20 percent apportionment of the Veteran's monthly VA disability compensation award to the appellant The appellant seeks an apportionment of the Veteran's VA compensation benefits. 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). After carefully reviewing all evidence in the record, the Board finds that apportionment should have been granted to the appellant. In this case, VA received the appellant's apportionment claim in January 2020. The record reflects the Veteran and appellant were married in July 2014 and the parties remained married but separated at the time of the submission of the apportionment claim. To this point, the Board notes that the Veteran's address and the appellant's address were different at the time of the filing of the apportionment claim and remained the same different addresses throughout the time period on appeal. The record further reflects that the Veteran received additional VA compensation for the appellant. On her January 2020 VA Form 21-0788, the appellant reported total monthly household income of approximately $1,400.00, and total monthly household expenses of approximately $1,400.00. The appellant also reported that the Veteran did not contribute financially to the appellant. While the appellant does not clearly suffer a financial hardship, the Veteran failed to reasonably discharge his responsibility for the appellant's support from January 2020 through their divorce on August 7, 2020. The Board finds a 20 percent monthly apportionment of the Veteran's VA compensation benefits to the appellant is warranted. See 38 C.F.R. § 3.451 (establishing a basic range from 20 to 50 percent of beneficiary's monthly payment as a reasonable apportionment amount with an apportionment in excess of 50 percent being presumed to result in undue hardship to the beneficiary); see also 38 C.F.R. § 3.453 (indicating the rate of apportionment of disability compensation will be determined under 38 C.F.R. § 3.451). Prior to the issuance of the decision on appeal, the Veteran neglected to submit any evidence in support of his claim. This essentially precludes a finding that an apportionment of 20 percent of his benefits would result in undue hardship to him since this amount falls within the range of a reasonable apportionment amount as outlined in 38 C.F.R. § 3.451. Although an apportionment of a monthly award in excess of 20 percent is contemplated by 38 C.F.R. § 3.451, it could result in an undue hardship on the Veteran due to his limited VA benefits and unknown monthly income. As discussed above, a grant of "general" apportionment does not require a finding of hardship on the part of the appellant. In sum, the Board finds that the evidence reflects that the Veteran and the appellant did not reside together, and that the Veteran was not reasonably discharging his responsibility for his spouse's support. As such, a "general" apportionment should have been granted to the appellant following her initial claim in January 2020, until the time of their divorce on August 7, 2020. MARJORIE A. AUER 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.