Citation Nr: A21020016 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 200827-160756 DATE: December 15, 2021 ORDER Entitlement to a 20 percent apportionment of the Veteran's monthly VA compensation award, and of the full amount of VA compensation benefits not paid to the Veteran during his period of incarceration, to the appellant, on behalf of the Veteran's child, M.M., is granted. FINDINGS OF FACT 1. M.M. is the Veteran's biological child and is in the custody of the appellant. 2. The Veteran has not reasonably discharged his duty of support for M.M. 3. An apportionment of 20 percent of the Veteran's VA compensation benefits on behalf of M.M. would not result in undue hardship on the Veteran. 4. VA reduced, or should have reduced, the Veteran's VA disability compensation benefits due to his period of incarceration for a felony between October [REDACTED], 2019 to July [REDACTED], 2020. 5. M.M. had an individual need for the VA compensation benefits withheld during the Veteran's period of incarceration. CONCLUSIONS OF LAW 1. The criteria for a 20 percent apportionment of the Veteran's VA compensation benefits to the appellant on behalf of M.M., since July [REDACTED], 2020, have been met. 38 U.S.C. § 5307; 38 C.F.R. § 3.450. 2. The criteria for an apportionment on behalf of M.M. of the full amount of VA compensation benefits not paid to the Veteran during his period of incarceration, from October [REDACTED], 2019 to July [REDACTED], 2020, have been met. 38 U.S.C. § 5313; 38 C.F.R. § 3.665. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2004 to February 2014. The appellant is the mother and custodial parent of the Veteran's minor child, M.M. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2020 decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied apportionment of the Veteran's VA compensation benefits to the appellant. In August 2020, the appellant submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and elected the Evidence Submission docket. In a December 2020 correspondence, the Board found that the appellant submitted good cause for an extension of time to submit her VA Form 10182 and notified the parties that the appeal had been docketed. On May 25, 2021, the Board notified the parties that the appeal was placed on the Evidence Submission docket. Therefore, the Board may only 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 parties with, or within 90 days from the date of the May 25, 2021 letter. Entitlement to apportionment of the Veteran's VA compensation benefits to the appellant for the benefit of the minor child M.M. The appellant seeks an apportionment of the Veteran's VA compensation benefits. She asserts that the Veteran has not been discharging his responsibility towards the minor child, M.M., and that she is experiencing financial hardship. 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 benefit. 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). Further, all or part of the compensation not paid to an incarcerated Veteran may be apportioned to the Veteran's spouse, child or children and dependent parents on the basis of individual need. 38 C.F.R. § 3.665. 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, a Judgment of Paternity, dated May 2016, reflects that the Veteran is the father of M.M. The evidence of record reflects that M.M. has not been in the Veteran's physical custody at any point during the appeal period and the appellant has full custody of the M.M. The appellant contends that the Veteran has not paid child support as ordered and is in arrears. An August 2021 account summary indicates that the Veteran owes $66,973.60 in arrears as of July 30, 2021. The Veteran has provided documentation that he made a $50.00 child support payment in April 2021 and set up an automatic payment of $50.00 on the 3rd of every month. However, the Board notes that there is no evidence that these subsequent scheduled partial child support payments were made. Thus, the Board finds that the Veteran has not reasonably discharged his responsibility for support of M.M. As such, the threshold requirements for a general apportionment have been met. 38 U.S.C. § 5307(a)(2); 38 C.F.R. § 3.450(a)(1)(ii). The Board further finds a 20 percent monthly 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). The Veteran currently receives $2,043.96 in monthly VA compensation benefits. He reported no other monthly income and monthly expenses totaling $1,459.00 for food, utilities, and installment contracts for appliances and furniture in his financial status report, dated May 2021. The Veteran also included his court ordered child support payments for M.M. and his two other children, T.M. and E.M., in his monthly expenses; however, as previously discussed, the evidence of record shows the Veteran is not making his court ordered child support payments regularly, if at all, during the appeal period. Therefore, the Board will not include the amount of his court ordered child support payments when calculating the Veteran's monthly expenses. Thus, the record reflects that a grant of a 20 percent apportionment of his VA compensation benefits would not cause him undue financial hardship. After the deduction of a 20 percent apportionment, the Veteran will have over $1,600.00 (20 percent of $2,043.96 = $408.79; $2,043.96 - $408.79 = $1,635.17), which reasonably allows for him to provide for his basic necessities ($1,635.17 - $1,459.00 = $176.17). Additionally, the evidence is against finding that an apportionment of 20 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. Although an apportionment of a monthly award in excess of 20 percent is contemplated by 38 C.F.R. § 3.451, it would result in an undue hardship on the Veteran. See 38 C.F.R. § 1.965(a)(3) (indicating "undue hardship" results when a person is deprived of basic necessities). The Board will now analyze whether an apportionment should be granted on M.M.'s behalf during the Veteran's incarceration, between October [REDACTED], 2019 to July [REDACTED], 2020. According to 38 C.F.R. § 3.665(e), all or part of the compensation not paid to an incarcerated Veteran may be apportioned to the Veteran's spouse, child or children, and dependent parents on the basis of individual need. 38 C.F.R. § 3.665(e). In determining individual need, consideration is given to such factors as the apportionee claimant's income and living expenses, the amount of compensation available to be apportioned, the needs and living expenses of other apportionee claimants as well as any special needs, if any, of all apportionee claimants. Id. The Board finds M.M. had an individual need for the VA compensation benefits being withheld during the Veteran's period of incarceration during the appeal period. The appellant has reported reasonable monthly expenses for M.M. Additionally, the record reflects that the Veteran owes a significant amount in child support arrears. The award of the withheld benefits to the appellant on behalf of M.M. would not result in any hardship to the Veteran because they would otherwise go unpaid. As a result, the Board finds that the criteria have been meet for an apportionment on behalf of M.M. of the full amount of VA compensation benefits not paid to the Veteran during his incarceration. 38 U.S.C. § 5313(b); 38 C.F.R. § 3.665(e). (Continued on the next page) In sum, the Board finds the requirements for a 20 percent apportionment have been met, as well as the requirements for an apportionment on behalf of M.M. of the full amount of VA compensation benefits not paid to the Veteran during his incarceration; the appeal is granted. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Robinson, Associate 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.