Citation Nr: 21005832 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-30 243 DATE: February 2, 2021 ORDER Entitlement to an apportionment of the Veteran's VA compensation benefits is denied. FINDING OF FACT During the pertinent time, the Veteran has provided support for the appellant and the appellant has not demonstrated financial hardship, as her income generally exceeds her expenses. CONCLUSION OF LAW The criteria establishing entitlement to an apportionment of the Veteran’s disability benefits have not been met. 38 U.S.C. § 5307; 38 C.F.R. §§ 3.450, 3.451, 3.452, 3.453, 3.458. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1980 to January 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 special apportionment decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the appellant appeared and testified at a virtual conference hearing before the undersigned Veterans Law Judge. A transcript is associated with the claims file. This is the only issue on appeal. At the outset, the Board notes this case involves a simultaneously contested claim subject to special procedural regulations. See 38 C.F.R. §§ 19.100, 19.101, 19.102, 20.500, 20.501, 20.502, 20.503, 20.504, 20.711. Specifically, when a substantive appeal is filed, the content will be furnished to the other contesting parties to the extent that it contains information which could directly affect the payment or potential payment of the benefit which is the subject of the contested claim. 38 C.F.R. § 19.102. Further, where a hearing is held in a simultaneously contested claim, all parties and their representatives “will be notified and afforded an opportunity to be present.” 38 C.F.R. § 20.711. The Veteran has been adamant that he will not be present for, or participate in an apportionment hearing involving his ex-spouse, the appellant. See VA Form 21-0820, Report of General Information. In light of the finding the Board finds no basis to remand this case on this basis. The appellant seeks an apportionment of the Veteran’s VA compensation benefits. She asserts that she is experiencing financial hardship. See December 2020 Hearing Transcript. 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). Here, the appellant is the ex-spouse of the Veteran. See December 2020 Hearing Transcript. The appellant’s statements and her testimony before the Board show that the Veteran is paying her $1,447.43 per month, half of his retirement. Id. Thus, the Board finds that the Veteran is reasonably discharging his responsibility for the support of the appellant, and the threshold requirements for a general apportionment have not been met. 38 U.S.C. § 5307 (a)(2); 38 C.F.R. § 3.450 (a)(1)(ii). Regarding a special apportionment, based on a review of the financial information of record, the appellant has not demonstrated a financial need, as her income exceeds her reported expenses. She has stated expenses of $2,273.37 per month and income of $2,325.51 per month. See September 2019 VA Form 21-0788, Information Regarding Apportionment of Beneficiary’s Award. While this is clearly not a great deal of money, it does not provide a basis to grant this claim. Financial hardship of the Veteran must also be considered. In sum, the Board finds the appellant has failed to establish the threshold requirements for either type of apportionment authorized by VA regulation. A general apportionment under 38 C.F.R. § 3.450 is not warranted because the Veteran is reasonably discharging his duty of support for the appellant by making monthly support payments of his retirement. The requirements for a special apportionment under 38 C.F.R. § 3.451 have not been met because the appellant has not established hardship due to inadequate financial support from the Veteran. In reaching this conclusion, the Board acknowledges the appellant seeks to have additional support payments taken out of the Veteran’s monthly VA disability compensation benefits. However, it would be inconsistent with VA regulation to grant an apportionment of the Veteran’s benefits when he is already making consistent payments. The evidence otherwise establishes the appellant has sufficient income to avoid hardship. As a result, the claim of entitlement to apportionment of the Veteran’s VA disability compensation benefits must be denied. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, 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.