Citation Nr: A21018263 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 190917-58990 DATE: November 15, 2021 ORDER A general apportionment of the Veteran's VA disability compensation benefits to the appellant, in the amount of the dependency allowance for a spouse, is granted prior to February 14, 2020. FINDINGS OF FACT 1. The parties (Veteran and appellant) were married in April 2013. 2. The parties' divorce was finalized on February 14, 2020. 3. During the appeal period from January 2019 and until the parties' divorce in February 2020, the Veteran did not reasonably discharge his duty of support for the appellant. 4. A general apportionment in the amount of the dependency allowance for a spouse from the Veteran's VA disability compensation benefits would not result in undue hardship on the Veteran for the period prior to February 14, 2020. CONCLUSION OF LAW Prior to February 14, 2020, the criteria for a general apportionment of the Veteran's VA disability compensation benefits to the appellant, in the amount of the dependency allowance for a spouse, have been met. 38 U.S.C. § 5307; 38 C.F.R. § 3.450. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1963 to May 1967. The appellant, A.J., and the Veteran were married from April 2013 to February 2020. The decision on appeal was issued in August 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. The decision denied apportionment of the Veteran's VA disability compensation to the appellant. In September 2019, the appellant submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), as to the denial of apportionment on her behalf and elected the Evidence Submission option; therefore, the Board may consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the appellant with the VA Form 10182 or within 90 days of receipt of the VA Form 10182. 38 C.F.R. § 20.303. The Board may also consider a brief, argument, or a request for a different type of review, from the Veteran or his representative, within 30 days of February 18, 2021 correspondence, which furnished him with the content of appellant's NOD. 38 C.F.R. § 20.404. The Board may also consider evidence, from either party, within 90 days of April 7, 2021 correspondence sent to each party. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim herein, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran or the appellant may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. A September 2014 rating decision found the Veteran was not competent to handle disbursement of funds. During the pendency of the appeal, the Veteran's son, M.J., initially served as the Veteran's fiduciary but was replaced by S.M. in July 2019. In June 2019, Veteran's then fiduciary requested a hearing in this matter before a representative at the AOJ. VA correspondence dated in July 2019 notified the Veteran's then fiduciary that a Board hearing had been scheduled. However, neither the Veteran or any fiduciary reported for the scheduled hearing and no good cause was shown for their absence; therefore, the hearing request is deemed withdrawn. 1. Entitlement to an apportionment of the Veteran's VA compensation benefits As relevant to this appeal, in January 2019, the appellant filed a claim for an apportionment of the Veteran's VA compensation benefits due to financial hardship. Initially, the record reflects that the Veteran and appellant were divorced on February 14, 2020. Upon a divorce from a veteran, the ex-spouse loses status as a veteran's spouse, including any potential entitlement to an apportionment of VA disability compensation, effective from the date of the divorce. See 38 U.S.C. § 101 (31); 38 C.F.R. §§ 3.1(j), 3.50; Marrero v. Gober, 14 Vet. App. 80, 82 (2000). Indeed, a divorce severs the dependent relationship. Here, as the appellant and Veteran were divorced on February 14, 2020, the Board will address the issue of entitlement to an apportionment for the period prior to that date. Further, the Board finds the February 2020 final decree of divorce is not new evidence but a new legal finding that is for consideration. In addition, the Board observes that the appeal period for this appeal is from January 28, 2019, the date of receipt of the claim, to August 21, 2019, the date the decision on appeal was issued. VA regulations provide for two types of apportionments. A "general" apportionment may be paid under the circumstances set forth in 38 C.F.R. § 3.450. Specifically, the law provides, in part, that all or any part of a veteran's VA compensation benefits may be apportioned on behalf of his spouse, if the veteran is incompetent and is being furnished hospital treatment, institutional, or domiciliary care by the United States, or any political subdivision thereof; or if the veteran is not residing with his spouse, and the veteran is not reasonably discharging his responsibility for the spouse's support. 38 U.S.C. § 5307; 38 C.F.R. §§ 3.450, 3.452. Notably, 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 on 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 apportionee. 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 is not for application in a contested claim such as this case because the benefit of the doubt cannot be given to both the appellant and the Veteran. See Elias v. Brown, 10 Vet. App. 259, 263 (1997). Here, the Veteran and the appellant were married in April 2013. The record reflects parties were separated during the entirety period on appeal. Specifically, the record reflects the Veteran is a resident at an Alzheimer's facility. Further, proximate to the appeal period, an August 2018 petition for divorce alleged the Veteran and the defendant lived separate and apart continuously since September 2017, and although the appellant disputed this a December 2018 statement, she generally indicated the Veteran had been a resident in several assisted living facilities. Moreover, during the pendency of the claim, in January 2019, April 2019, and June 2019 statements, the appellant reported she was unaware of the Veteran's whereabouts. Additionally, there is no evidence that the Veteran provided financial support to the appellant during the appeal period at issue. Specifically, in January 2019 and April 2019, VA Forms 21-0788, Information Regarding Apportionment of Beneficiary's Award, the appellant only reported Social Security income and provided evidence of her reported income amount. She did not indicate that she received any support from the Veteran. Similarly, in an April 2019 statement, the appellant reported she only received income from Social Security disability and had not received an income from the Veteran since August 2018. Additionally, the appellant did not serve as the Veteran's fiduciary during the appeal period at issue, and further, in August 2019, VA found she did not misuse funds received on the Veteran's behalf when she was designed as his fiduciary. As discussed, there is no evidence of any financial support provided to her by the Veteran during the appeal period at issue. As such, the threshold requirements for a general apportionment have been met. 38 U.S.C. § 5307(a)(2); 38C.F.R. § 3.450(a)(1)(ii). The Board further finds a general apportionment is warranted in the amount of the dependency allowance awarded for a spouse. This amount is equivalent to the additional dependency allowance the Veteran received on behalf of the appellant during their period of separation. Indeed, prior to the parties' divorce, the Veteran continued to receive dependency benefits on behalf of his spouse, which were properly owed to the appellant. Furthermore, the Veteran cannot prevail on a claim of hardship when he is receiving additional benefits for his dependent and the apportioned amount is no more than the additional benefits. See Hall v. Brown, 5 Vet. App. 294, 295 (1993). Nevertheless, the Board does find an apportionment in excess of the dependency allowance would result in undue hardship in the Veteran's case. Here, although the Veteran has not provided financial information during the pendency of the current claim, in the context of a prior claim for apportionment, in December 2018, the Veteran's then representative reported he received $637.00 of income from Social Security and had $2736.00 expenses. The record also reflects as of December 1, 2018, the Veteran received $4,368.59 monthly in VA disability compensation benefits. Thus, the record generally reflects the Veteran's income exceeded his expenses. In sum, the criteria for a general apportionment of the Veteran's VA benefits have been met. 38 U.S.C. § 5307; 38 C.F.R. § 3.450. The Veteran did not provide financial support for the appellant during their separation within the appeal period and an apportionment of the dependency allowance he received on her behalf cannot, as matter of law, result in undue hardship to him. See Hall, 5 Vet. App.at 295. As a result, a general apportionment to the appellant, in the amount of the dependency allowance the Veteran received on her behalf, is granted prior to February 14, 2020. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.