Citation Nr: A21019348 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 191204-160779 DATE: December 6, 2021 ORDER An apportionment of the Veteran's VA compensation benefits to the appellant on behalf of G.R. and A.R. is granted. FINDINGS OF FACT 1. G.R. and A.R. are the Veteran's biological children. 2. The appellant had primary physical custody of G.R. until July 2019. 3. The appellant has primary physical custody of A.R. 4. The appellant has demonstrated financial hardship as her expenses generally exceed her income. 5. 4. A special apportionment does not result in undue hardship on the Veteran. CONCLUSIONS OF LAW The criteria for an apportionment for G.R. from the Veteran's VA disability compensation benefits prior to July 20, 2019 have been met. 38 U.S.C. § 5307; 38 C.F.R. §§ 3.450, 3.451, 3.452, 3.453, 3.458, 3.503, 3.667. The criteria for an apportionment for A.R. from the Veteran's VA disability compensation benefits have been met. 38 U.S.C. § 5307; 38 C.F.R. §§ 3.450, 3.451, 3.452, 3.453, 3.458, 3.503, 3.667. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1980 to August 1980 and from April 1998 to December 2004. The appellant is the mother and custodian of the Veteran's child, A.R., and was the custodian of the Veteran's child, G.R., for a portion of the appeal period. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2019 decision by the Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for to seek review of VA decisions. This decision has been written consistent with the new AMA framework. In December 2019, the appellant appealed this issue to the Board under the Evidence Submission lane by submitting a notice of disagreement under the AMA which affords the opportunity to forward additional evidence within 90-days of filing a Notice of Disagreement (NOD). See 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). 1. An apportionment of the Veteran's VA compensation benefits to the appellant on behalf of G.R. and A.R. The appellant seeks an apportionment of the Veteran's VA compensation benefits. She asserts that she needs financial support. 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). After a review of all the evidence, the Board finds that, for the relevant period of the claim, a special apportionment of the Veteran's VA disability compensation benefits to the appellant is warranted. In this regard, the Board finds that, while the appellant has demonstrated financial hardship, the Veteran has not demonstrated undue financial hardship if an apportionment is granted. On her April 2019 VA Form 21-0788, the appellant reported no monthly household income, and total monthly household expenses of over $1,200.00. The appellant also reported that the Veteran was not providing financial support for the children and had not paid child support in years. On her July 2019 VA Form 21-0788, the appellant reported total monthly household income of approximately $2,600.00. While her total monthly expenses were not shown on the form, she submitted bills that demonstrated monthly expenses of approximately $1,700.00. This did not include expenses such as food, utilities, clothing, medical expenses, school expense, or car payments. The appellant also reported that the Veteran did not contribute financially. The appellant noted that the $640.00 in food stamps that was included in her monthly income would cease soon because she had started working. On her December 2019 VA Form 21-0788, the appellant reported total monthly household income of approximately $2,000.00, and total monthly household expenses of over $2,800.00. The appellant also reported that the Veteran did not contribute financially. In light of the above, the appellant's monthly expenses exceeded her income. Based on the foregoing, the Board finds that the appellant has demonstrated financial hardship as her reported expenses generally exceeded her income during the relevant period of the claim. The Board further finds an apportionment of the Veteran's VA compensation benefits to the appellant is warranted. See 38 C.F.R. § 3.451 (establishing a basic range from 20 to 50 percent of beneficiary's monthly payment as a reasonable apportionment amount with an apportionment in excess of 50 percent being presumed to result in undue hardship to the beneficiary); see also 38 C.F.R. § 3.453 (indicating the rate of apportionment of disability compensation will be determined under 38 C.F.R. § 3.451). Prior to the issuance of the decision on appeal, the Veteran neglected to submit any evidence in support of his claim. This essentially precludes a finding that an apportionment of between 20 to 50 percent of his benefits would result in undue hardship to him since this amount falls within the range of a reasonable apportionment amount as outlined in 38 C.F.R. § 3.451; see also 38 C.F.R. § 1.965(a)(3) (indicating "undue hardship" results when a person is deprived of basic necessities). The Board notes the Veteran's representative essentially argued in a September 2021 Brief that court records that included the date of the divorce, child support amount, and the Veteran's payment history needed to be obtained before the Board made a decision. However, a special apportionment for the Veteran's children does not consider these facts. Therefore, remand is not necessary to obtain these documents. Based on the foregoing, the Board finds that the appellant has demonstrated financial hardship, and the Veteran has not demonstrated that a grant of a special apportionment of his VA disability compensation benefits would cause him undue financial hardship. As such, the Board finds that a special apportionment of the Veteran's VA disability compensation benefits is warranted. An apportionment for G.R. is only warranted until he became 18 years old and began living with the Veteran in July 2019. An apportionment for A.R. is warranted for the entire appeal period. Given the above evidence relating to the relative financial situations of the Veteran and the appellant, an apportionment is appropriate. MARJORIE A. AUER 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.