Citation Nr: A21018097
Decision Date: 11/10/21	Archive Date: 11/10/21

DOCKET NO. 200526-150844
DATE: November 10, 2021

ORDER

The grant of an apportionment of the Veteran's VA compensation benefits to the appellee in the amount of $365.00 per month effective from July 1, 2018 to January 1, 2020 on behalf of the minor child, T.S.I.S., was not proper.

FINDINGS OF FACT

1. The appellee did not demonstrate that the Veteran was not reasonably discharging his responsibility for the minor child's support during the relevant period of the claim.

2. The Veteran has demonstrated the apportionment caused undue financial hardship.

CONCLUSION OF LAW

The grant an apportionment of the Veteran's VA compensation benefits to the appellee in the amount of $365.00 per month effective from July 1, 2018 to January 1, 2020 on behalf of the minor child, T.S.I.S., was not proper. 38 U.S.C. § 5307 (2012); 38 C.F.R. § 3.450, 3.451, 3.452, 3.453, 3.458, 3.503, 3.667 (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran, who is the appellant in this case, served on active duty in the United States Army from October 1996 to November 2005. The appellee is the mother of the minor child, T.S.I.S.

In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Because this is a contested claim, the Board may only consider the evidence of record at the time of the April 2020 decision on appeal; a brief or argument filed by the party who did not file the Notice of Disagreement (NOD) if received within 30 days of the April 12, 2021, notice of the content of the NOD; and any evidence received within 90 days following the June 11, 2021, notice that the appeal had been docketed. 38 C.F.R. §§ 20.400 20.405.

1. The propriety of the apportionment of the Veteran's VA compensation benefits from July 1, 2018 to January 1, 2020 on behalf of the minor child, T.S.I.S. 

The Veteran asserts that the RO decision to grant an apportionment of his VA compensation benefits to the appellee in the amount of $365.00 per month effective from July 1, 2018 to January 1, 2020 was not proper.

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).

In this case, VA was notified of the appellee's intent to file an apportionment claim in August 2018. In December 2018, the RO denied the claim for an apportionment on the basis that the minor child had been adopted by another party. The appellee filed a notice of disagreement with this action and an apportionment was granted in the April 2020 apportionment decision on appeal. In April 2020, the RO determined that the Veteran had not been reasonably discharging his duty to support his dependent for the period from July 2018, one month before the claim for an apportionment was received, until January 2020, the date at which the court-ordered garnishment of the Veteran's wages began. Accordingly, the relevant period of the claim is from July 1, 2018 to January 1, 2020.

For the reasons set forth below, the Board finds that the evidence weighs in favor of finding that the RO grant of an apportionment of the Veteran's VA compensation benefits to the appellee in the amount of $365.00 per month effective from July 1, 2018 to January 1, 2020, was not proper.

The Board finds that the appellee did not demonstrate that the Veteran was not reasonably discharging his responsibility for the child's support. In a December 2018 statement, the appellee asserted that the Veteran was not supporting his child, and that she had not received any money from the Veteran. This was supported with an accounting of the amount due to the apportionee and the amount paid by the Veteran from January 2018 to December 2018. See Bank Statement submitted December 2018.  However, in a May 2020 child support payment record, the Veteran showed making payments of $2,283.09 in October 2019 and $445.38 in December 2019. Based on the foregoing, the Board finds that the appellee did not demonstrate that the Veteran was not reasonably discharging his responsibility for their child's support during the period from July 2018 to January 2020. Therefore, the Board must find that the assignment of a general apportionment was not warranted.

Having determined that the appellee was not entitled to a general apportionment, the Board must now determine whether entitlement to a special apportionment was warranted. After a review of all the evidence, the Board finds that a special apportionment was not warranted. In this regard, the Board finds that a special apportionment would cause undue financial hardship on the Veteran.

On her May 2018 VA Form 21-0788, the appellee reported total monthly income of 2,722.98 (approximately $3,216.11), and total monthly household expenses of 3,115.32 (approximately $3,679.50). The appellee also reported that she had no net worth, to include from bank accounts, retirement accounts, stocks, or other property. In light of the above, the appellee's monthly expenses exceeded her income by approximately 392.34 (approximately $463.39). Thus, the appellee has shown financial hardship.

Thus, the question remains if a special apportionment would cause undue financial hardship on the Veteran. On the Veteran's November 2018 VA Form 21-0788, the Veteran reported total monthly income of $4,845.00, and total monthly household expenses of $4,865.00. The Veteran also reported that he had no net worth, to include from bank accounts, retirement accounts, stocks, or other property. In light of the above, the Veteran's monthly expenses exceeded his income by approximately $20.00.

Based on the foregoing, the Board finds that the appellee demonstrated financial hardship as her reported income generally exceeded her expenses. However, the Board finds that granting a special apportionment caused undue financial hardship to the Veteran. Further, the record indicates that the Veteran was reasonably discharging his duty to the minor child in the form of lump payments in 2019.  Accordingly, the RO decision to grant an apportionment of the Veteran's VA compensation benefits to the appellee in the amount of $365.00 from July 1, 2018 to January 1, 2020 was not proper, and the appeal is therefore granted.

 

 

A. S. CARACCIOLO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Laura C. Owens

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.