Citation Nr: A21019145 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 200124-64509 DATE: December 1, 2021 ORDER Entitlement to a general apportionment of the Veteran's VA disability compensation benefits on behalf of his dependent child, G.B., is granted. FINDING OF FACT During the appeal period, the Veteran has lived separately from his child, G.B., has not been reasonably discharging his responsibility for support for G.B., and an apportionment would not cause the Veteran undue financial hardship. CONCLUSION OF LAW The criteria for a general apportionment of the Veteran's VA compensation benefits to the appellant, on behalf of G.B., have been met. 38 U.S.C. § 5307; 38 C.F.R. § 3.450. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2000 to December 2006. The appellant is the Veteran's former spouse and the mother and custodian of their child, G.B. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2019 decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appellant appealed the June 2019 AMA decision to the Board of Veterans' Appeals (Board) and chose the Hearing docket. The Board may only consider the evidence of record at the time of the June 2019 decision on appeal, as well as any evidence submitted at the July 2021 Board hearing or within 90 days following the hearing. 38 C.F.R. §20.302(a). 1. Entitlement to a general apportionment of the Veteran's VA disability compensation benefits on behalf of his dependent child, G.B. The appellant seeks an apportionment of the Veteran's VA compensation benefits. She asserts that the Veteran has not been providing support for their child, G.B. 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). Throughout the appeal period, G.B. did not reside with the Veteran, and the Veteran does not contend otherwise. For the reasons set forth below, the Board finds that the Veteran was not reasonably discharging his responsibility to support his dependent child, G.B., throughout the appeal period, and a general apportionment of his VA compensation benefits is warranted. The appellant contends that the Veteran was not discharging his responsibility to support his dependent child. In support of her claim, the appellant provided a copy of a March 2019 Virginia Department of Social Services payment record that indicated the appellant had not received child support from the Veteran since at least July 2018 and the Veteran was in arrears of $4,570.00. At the July 2021 Board hearing, the appellant testified that the Veteran has not paid child support since that time and is over $18,000.00 in arrears. Prior to the issuance of the decision on appeal, the Veteran failed to submit any evidence in support of his claim. This essentially precludes a finding that an apportionment of his benefits would result in undue hardship to him as long as the amount falls within the range of a reasonable apportionment amount as outlined in 38 C.F.R. § 3.451. As referenced above, 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. Therefore, the Board finds that the criteria for the assignment of an apportionment of the Veteran's VA disability compensation benefits is warranted as outlined in 38 C.F.R. § 3.451. Based on the foregoing, the Board finds that the weight of the evidence is in favor of finding that the Veteran was not reasonably discharging his responsibility to support his dependent child, G.B., during the appeal period. Since the Veteran was not reasonably discharging his responsibility to support G.B. there is no need to consider a special apportionment. Because the Veteran was not fulfilling his duty to pay child support to the appellant, was not otherwise providing for G.B. during the appeal period, and the Veteran has not demonstrated that the grant of an apportionment of his VA disability benefits would cause him undue financial hardship, a general apportionment of the Veteran's VA disability compensation benefits is warranted. M.E. Larkin 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.