Citation Nr: A21019331 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 200810-102828 DATE: December 6, 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 May [REDACTED], 2021. An apportionment of the Veteran's VA disability compensation benefits to the appellant, on behalf of the children, I.C., E.P., and P.P., is denied. FINDINGS OF FACT 1. The parties (Veteran and appellant) were married in January 2015. 2. The parties' divorce was finalized on May [REDACTED], 2021. 3. During the appeal period from April 2020 and until the parties' divorce in May 2021, 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 May [REDACTED], 2021. 5. Throughout the period on appeal, the appellant's children, I.C., E.P., and P.P., the Veteran's stepchildren, were not members of the Veteran's household. CONCLUSIONS OF LAW 1. Prior to May [REDACTED], 2021, 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. 2. Throughout the period on appeal, the criteria for an apportionment of the Veteran's compensation benefits on behalf of the appellant's children, I.C., E.P., and P.P., have not been met. 38 U.S.C. § 5307; 38 C.F.R. §§ 3.57, 3.450, 3.451, 3.452, 3.458. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1989 to August 2009. The appellant, T.D., and the Veteran were married from January 2015 to May 2021. The decision on appeal was issued in June 2020 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 and her children I.C., E.P., and P.P. In August 2020, the appellant submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), as to the denial of apportionment and elected the Hearing 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 either party at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Board may also consider a brief, argument, or a request for a different type of review (VA Form 10182), 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. In June 2021, the appellant and the Veteran presented testimony before at a virtual hearing before a Veterans Law Judge. A transcript of the June 2021 Board hearing is of record. Evidence 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. 1. Entitlement to an apportionment of the Veteran's VA compensation benefits As relevant to this appeal, in April 2020, the appellant filed a claim for an apportionment of the Veteran's VA compensation benefits due to financial hardship. Initially, the Board notes a marriage license for the parties is not of record. However, of record is a January 2015 affidavit to correct a marriage license, specifically to correct place of birth and state of residence, but which documented the parties were married in January 2015. Also, a May 2021 Final Order of Divorce documented the parties were married in January 2015. Further, VA has previously accepted the appellant as the Veteran's spouse. Accordingly, the Board will accept the parties were married in January 2015. The record also reflects that the Veteran and appellant have divorced. 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 reflected in a May 2021 Final Order of Divorce, the appellant and Veteran were divorced on May [REDACTED], 2021, and the Board will address the issue of entitlement to an apportionment for the period prior to this date. In addition, the Board observes that the appeal period for this appeal is from April 6, 2020, the date of receipt of the claim, to June 17, 2020, 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 that all or any part of the Veteran's VA compensation benefits may be apportioned if the Veteran is not residing with his or her spouse or children, and the Veteran is not reasonably discharging his or her responsibility for the support of the spouse or children. 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, as discussed above, the Veteran and the appellant were married in January 2015. The record reflects that the parties were separated during the entirety of the period on appeal and that the Veteran did not reasonably discharge his duty of support for the appellant. Specifically, in an April 2020, VA Form 21-0788, Information Regarding Apportionment of Beneficiary's Award, the appellant reported the Veteran was contributing $2155.00. However, in an April 2020 statement, the appellant clarified that the Veteran ceased providing funds for expenses such as groceries, supplies, educational needs, and other expenses, in approximately October 2019. In an April 2020 Report of General Information, the appellant reported the Veteran did not live in the household but did pick up mail. In an April 2020 statement, the appellant reported the Veteran hired movers the week of March 24, 2020 and began selling items and he moved out of the home with no forwarding address or indication of his location on April 1, 2021. In an April 2020 statement, the appellant reported the Veteran was responsible for repairing the home and half of the last of the expenses to maintain the home monthly such as utilities, phone, groceries and additional expenses, which he had not done. However, in an April 2020 Report of General Information, the Veteran reported his address was the same as what was on file, specifically that he and the appellant still resided together but were in the process of divorce. In an April 2020 statement, the Veteran reported he was not providing any monthly support to his spouse as they lived at the same address, that they were divorcing, and were living separately in the same home. He also stated from the date of their marriage, they had been, and were currently, splitting the share of the household bills, since they earned about the same monthly income. The record reflects, in terms of the home that the parties rented prior to their separation, a March 2020 e-mail, from the property landlords, indicated they had received the written request for early lease termination as of May 1, 2020. Similarly, in an April 2020 e-mail, the property landlords indicated a walk through was scheduled on May 1, 2020. Additionally, an April 2020 Complaint for Divorce on Ground of Six Months Separation, signed by the Veteran, documented the parties have lived separate and apart without cohabitation and without interruption for more than six months, specifically since August 2019. Further, an April 2021 Separation and Marital Settlement Agreement, signed by each party, cites April 1, 2020 as the parties' date of separation. Moreover, and probatively, the May 2021 Final Order of Divorce, also signed by each party, stated the parties had lived separate and apart, continuously without any cohabitation and without interruption, for a period exceeding six months, namely since on or about April 1, 2020. Accordingly, the Board finds the parties were separated during the entirety of the period on appeal. Further, the Board finds the Veteran did not reasonably discharge his duty of support for the appellant. Specifically, the April 2021 Separation and Marital Settlement Agreement directed that for full satisfaction of the Veteran's portion of the expenses by the appellant to maintain the jointly leased rental property after Veteran vacated the residence on April 1, 2020, the Veteran would pay the sum of $816.50 to the appellant. The April 2021 agreement also noted the parties agreed that Veteran paid $816.50 to the appellant in early March 2020, which is prior to the appeal period at issue. In this regard, the Board observes the lease signed by the parties on their jointly leased rental property prior to their separation, reflects the rent was $3500 per month, and $816.50 is not even half of this amount. In addition, the Board notes that the April 2021 Separation and Marital Settlement Agreement also documented parties' acknowledged that the appellant had filed a claim with the Department of Veterans Affairs against the Veteran's dependency benefit and she retained as her sole and separate property any and all monies she received from the Department of Veterans Affairs in connection with her claim and would be solely responsible for any tax liability. Thus, this agreement acknowledged the appellant's pending claim for apportionment, but not provide for any specific provisions related to her claim. The April 2021 Separation and Marital Settlement Agreement, received at the time of the hearing, also directed the Veteran to maintain Tricare medical insurance coverage for the appellant and her children until an entry of Final Order of Divorce. In this regard, in June 2021 testimony, the appellant reported after the Veteran left the home, he cancelled Tricare, and she had start paying for Tricare on her own. In June 2021 testimony, the Veteran reported for the duration of their marriage, he and the appellant split the bills evenly. However, he also testified that when they determined that the marriage was over and they no longer wanted to cohabitate together, there was no discussion on who would pay what bills. Of record is an April 2020 e-mail which indicated the Veteran would do certain tasks to move out the home and would pay half of any cleaning bill. However, as discussed above, the appellant indicated the Veteran did not share in any expenses during the appeal period. Moreover, during the periods when evidence can be considered by the Board, the Veteran has not provided any documentation of any expenses he paid to the appellant or on her behalf. Thus, as discussed, the record reflects the Veteran was ordered to retrospectively pay $816.50 to the appellant for the resolution of the jointly leased rental property expense and to pay Tricare medical insurance coverage for a portion of time, which does not reflect Veteran reasonably discharged his duty of support for the appellant 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. In June 2021 testimony, the Veteran reported his only dependents for VA purposes were two of his own children. However, the record reflects the appellant was added to the Veteran's award as his dependent spouse, with an effective date in January 2015. Further, the record reflects prior to the parties' divorce, the Veteran continued to receive benefits on behalf of his spouse until June 2021, which were properly owed to the appellant until their divorce. 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, in April 2020, the Veteran submitted a list of income and expense that was generally even. In April 2020, the Veteran also submitted a VA Form 21-0788, Information Regarding Apportionment of Beneficiary's Award, reported his income exceed expenses by over $4800. He also reported a net worth over $260,000. 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 reasonably discharge his duty of support for the appellant 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, 5Vet. 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 May [REDACTED], 2021. 2. Entitlement to an apportionment of the Veteran's VA disability compensation benefits to the appellant, on behalf of the children, I.C., E.P., and P.P. The Board notes that the appellant originally sought an apportionment on behalf of her children, I.C., E.P., and P.P., who were the Veteran's stepchildren during their marriage. However, the Board finds that apportionment benefits are not available. Under 38 U.S.C. § 101 (4) (A) (iii) and 38 C.F.R. § 3.57 (a) and (b), the term "child" excludes a stepchild who is no longer a member of the Veteran's household. As noted above, the appellant reported that she and I.C., E.P., and P.P no longer resided with the Veteran as of the date of claim in April 2020, as the parties were separated at that time. Thus, I.C., E.P., and P.P. each ceased being the Veteran's "stepchild" for VA purposes when she and the appellant ceased being members of the Veteran's household. As the regulations only provide apportionment benefits to either a spouse or a child of the Veteran as defined by statute and regulation, the appellant's children, I.C., E.P., and P.P., fall outside the scope of VA regulations. Thus, the appellant's children do not qualify for apportionment under VA laws and regulations and the claim is denied. 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.