Citation Nr: A21019892 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 210127-141580 DATE: December 14, 2021 ORDER The award of a general apportionment of the Veteran's VA compensation benefits in the amount of $210.00 per month to D.D.S. for the benefit of herself is proper, and the Veteran's appeal to terminate the apportionment is denied. The award of a general apportionment of the Veteran's VA compensation benefits to D.D.S. for the benefit of the minor children, C.J.S., D.A.S. and C.B.S., is improper, and the Veteran's appeal to terminate the apportionment is granted. FINDINGS OF FACT 1. The parties (Veteran and D.D.S.) were married in October 2006. 2. For the period on appeal, the Veteran did not reasonably discharge his duty of support for D.D.S., his estranged spouse. 3. For the period on appeal, an apportionment of the Veteran's VA compensation benefits in the amount of $210.00 per month does not result in undue hardship to the Veteran. 4. For the period on appeal, the record does not show that the parties' children, C.J.S., D.A.S. and C.B.S., resided with D.D.S. CONCLUSION OF LAW The award of a general apportionment in the amount of $210.00 of the Veteran's VA disability compensation benefits to D.D.S. for her own benefit was proper; however, a general apportionment of the Veteran's VA compensation benefits to D.D.S. for the benefit of the minor children C.J.S., D.A.S. and C.B.S was not proper. 38 U.S.C. § 5307; 38 C.F.R. §§ 3.450, 3.451. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 2006 to December 2011. In this matter, D.D.S. is the Veteran's estranged spouse and mother of the parties' minor children C.J.S., D.A.S. and C.B.S. D.D.S. and the Veteran married in October 2006. The decision on appeal was issued in January 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. The January 2021 decision granted a general apportionment, under 38 C.F.R. § 3.450, of the Veteran's VA disability compensation in the amount of $210.00 per month to D.D.S. for the benefit of herself and for the benefit of the minor children, C.J.S., D.A.S. and C.B.S., effective from May 1, 2020. In January 2021, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), as to the award of apportionment, which the Board has liberally construed to contest the award of apportionment to both D.D.S. as well as the minor children C.J.S., D.A.S. and C.B.S. In the January 2021 NOD, the Veteran 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 Veteran 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 D.D.S. within 30 days of March 22, 2021 correspondence, which furnished her with the content of Veteran's NOD. 38 C.F.R. § 20.404. The Board may also consider evidence, from either party, within 90 days of July 1, 2021, correspondence sent to each party. In addition, the appeal period for consideration is from April 20, 2020, the date VA received D.D.S.'s VA Form 21-0788, Information Regarding Apportionment of Beneficiary's Award, and January 12, 2021, the date June 2021 decision was issued. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims herein, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. 1. The issue as to the propriety of the award of an apportionment of the Veteran's VA compensation benefits in the amount of $210.00 per month to D.D.S. for the benefit of herself and the minor children, C.J.S., D.A.S. and C.B.S. In this case, the Veteran is appealing the propriety of the award of an apportionment to his spouse, D.D.S., for the benefit of herself and their minor children, C.J.S., D.A.S. and C.B.S. He asserts that the apportionment of his VA compensation benefits creates an undue hardship and the minor children C.J.S., D.A.S. and C.B.S. reside with him. 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). VA regulations provide for two types of apportionments, a special apportionment and a general apportionment. Here, however, a general apportionment was granted in the January 2021 rating decision, and thus, the Board will limit the scope of the discussion to the propriety of a general apportionment. A general apportionment 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). A general apportionment is payable to a spouse or a dependent. 38 U.S.C. § 5307(a)(2); 38 C.F.R. §§ 3.450(a)(1)(ii). 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). Here, the evidence does not support a finding that the minor children, C.J.S., D.A.S. and C.B.S., resided with D.D.S. during the appeal period at issue, which as discussed above, is from April 20, 2020 to January 12, 2021. Specifically, in a January 2021 statement, the Veteran reported he and the children's mother had been separated for five years and lived separately, and that he lived in his own house with his children, and they were on his lease. He also noted he had notified the schools that they resided with him. Consistent with the Veteran's statement, he also submitted leases dated in July 2020 and August 2020, which, in part, listed C.J.S., D.A.S. and C.B.S., as dependents and occupants, respectively. Thus, as the Veteran submitted objective and probative evidence in support of his contention that the parties' children, C.J.S., D.A.S. and C.B.S., resided with him, the Board finds the parties' children, C.J.S., D.A.S. and C.B.S., resided with the Veteran during the appeal period. Accordingly, a general apportionment to D.D.S. on their behalf is not warranted. Turning to the general apportionment already awarded to D.D.S. for her own benefit, throughout the appeal period, the evidence shows that the Veteran is being paid at the 40 percent rate with four dependents, including a spouse, D.D.S. Further, the record shows that the Veteran and D.D.S. have resided separately throughout the appeal period, and the Veteran did not reasonably discharge his duty of support D.D.S. during the appeal period. Specifically, according to the April 2020 VA Form 21-0788, submitted by D.D.S., no support was received from the Veteran. Additionally, in a June 2020 statement, D.D.S. reported she and the Veteran did not live together and had not been living together for four and half years. She also stated the Veteran had not paid child support and had not helped her in any way with their children. In January 2021, the Veteran submitted a VA Form 21-0788 and indicated he contributed $800.00 to D.D.S. However, he did not submit any documentation regarding this amount or any other amount he had provided to D.D.S. Thus, the most probative evidence reflects the Veteran and D.D.S. have resided separately throughout the appeal period and the Veteran did not reasonably discharge his duty of support D.D.S. during the appeal period. As such, the threshold requirements for a general apportionment, as already awarded, have been met. Further, based on a review of the record, the Board is unable to find that the general apportionment of the Veteran's VA compensation benefits in the amount of $210.00 per month results in an undue financial hardship for him. In this regard, in January 2021, the Veteran provided a VA Form 21-0788, and reported income of $3,527.00 per month and exactly equal expenses of $3,527 per month. However, he did not report his VA compensation benefit of $815.61 per month (as documented in May 2020 without any apportionment), and after consideration of this amount, the record reflects he has a surplus of $815.61 per month. Thus, the Board finds award of $210.00 monthly general apportionment to D.D.S. effective from May 1, 2020, as already awarded in January 2021 decision, does not cause the Veteran undue financial hardship. Additionally, the apportionment of $210.00 each month constituted slightly more than 20 percent of the Veteran's total monthly benefit, which is the minimum amount of apportioned benefits permitted. See 38 C.F.R. § 3.451. Further, to the extent the $210.00 monthly apportionment included apportionment for C.J.S., D.A.S. and C.B.S., the Board finds D.D.S alone warrants the $210.00 apportionment irrespective of any dependency of the parties' children. A general apportionment is warranted for the Veteran's estranged spouse because the Veteran is not contributing to the welfare of his spouse, and the grant of the apportionment would not cause undue hardship on the Veteran since he has excess resources after consideration of his monthly expenditures. Therefore, whether C.J.S., D.A.S. and C.B.S. receive an apportionment of the Veteran's disability compensation is irrelevant as to the decision to continue the general apportionment the Veteran's estranged spouse in the amount of $210.00 per month. Accordingly, after a review of all the evidence, the Board finds that the general apportionment of the Veteran's VA disability compensation benefits of $210.00, per month, to D.D.S. for her own benefit was proper, but the general apportionment, to D.D.S., for the benefit of the minor children, C.J.S., D.A.S. and C.B.S., is not proper. The Board finds that the general apportionment in the amount of $210.00 for D.D.S., the monthly amount granted by the AOJ, is appropriate. As discussed, the record reviewable by the Board reflects the Veteran is not contributing to the welfare of his spouse, and an apportionment of the Veteran's VA disability compensation benefits in the amount of $210.00 does not cause him undue financial hardship. As such, the Veteran's appeal to terminate the award of a general apportionment to D.D.S. for her own benefit is denied, but his appeal to terminate the award of a general apportionment to D.D.S. for the benefit of the minor children, C.J.S., D.A.S. and C.B.S., is granted. 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.