Citation Nr: A21016702
Decision Date: 10/13/21	Archive Date: 10/13/21

DOCKET NO. 210514-163057
DATE: October 13, 2021

ORDER

Entitlement to an increased apportionment of the Veteran's VA compensation benefits is denied.

FINDING OF FACT

The appellant has not shown an individual need in excess of the amount already apportioned to her.  

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. 3.665

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from October 1994 to March 1998 and from December 2004 to December 2006.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2021 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In the May 2021 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Direct Review docket.  Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal.  38 C.F.R. § 20.301.

Entitlement to an increased apportionment of the Veteran's VA compensation benefits

The appellant seeks an increased apportionment of the Veteran's VA compensation benefits.  She asserts that the current apportionment amount is insufficient.  The Board notes that the Veteran is currently incarcerated, and the Veteran's benefits are apportioned under 38 C.F.R. § 3.665(e).  

Compensation benefits of incarcerated Veterans may be apportioned "to the veteran's spouse ... on the basis of individual need."  38 C.F.R. § 3.665(e).  When evaluating individual need, the Board will give consideration "to such factors as the apportionee claimant's income and living expenses, the amount of compensation available to be apportioned, the needs and living expenses of other apportionee claimants as well as any special needs, if any, of all apportionee claimants."  Id.

Here, the appellant has not shown a need in excess of the dependent share already awarded.  In her January 2021 VA Form 21-0788, the appellant indicated her income was $1,700.00 per month.  Further, she indicated that her expenses were $1,425.00 per month.  Despite the monthly surplus of $275.00, the RO awarded the appellant an apportionment in the amount of $175.00 per month.  

The Board acknowledges the appellant's arguments that the minimum apportionment should be 20 percent and that a greater apportionment would allow her to travel to visit her husband more frequently.  However, as noted above, the appellant was awarded an apportionment under 38 C.F.R. § 3.665(e) not 38 C.F.R. § 3.451.  Less than a 20 percent apportionment is deemed insufficient when an apportionment is being granted due to a hardship shown by the apportionee, which is not the case here.  

Regarding the appellant's contention that an increased apportionment would allow her to visit the Veteran while he is incarcerated, the evidence needed to substantiate this claim is not of record.  The Board is only able to determine the individual need of the appellant based on the evidence of record.  In order to determine whether the additional expense related to travel would be a hardship on the appellant, the Board suggests she submits an updated VA Form 21-0788 showing what expenses would be incurred in addition to her normal monthly expenses so that all of the necessary evidence is of record. 

As the evidence of record does not show an individual need on the part of the appellant, the claim for an increased apportionment 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.