Citation Nr: 21007325 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 11-18 444 DATE: February 9, 2021 ORDER Entitlement to an apportionment of the Veteran’s VA disability compensation benefits is denied. FINDING OF FACT For the period on appeal, the Veteran was reasonably discharging his duty of support for the dependent child, D.B., and the evidence fails to establish she experienced hardship due to inadequate financial support from the Veteran. CONCLUSION OF LAW The criteria for an apportionment of the Veteran’s VA disability compensation benefits are not met. 38 U.S.C. § 5307; 38 C.F.R. §§ 3.450, 3.451. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1989 to January 1998. The appellant seeks benefits as the mother of the Veteran’s child, D. B. The Board notes that the child reached the age of 18 in May 2018. However, an apportionment of the Veteran’s benefits may be warranted prior to that time. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September 2008 special apportionment decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In an October 2009 decision, the RO continued the denial of the Appellant’s claim for apportionment of the Veteran’s VA disability compensation benefits on behalf of the parties’ child. In April 2017, the Veteran testified at a videoconference hearing before one of the undersigned Veterans Law Judges and, in October 2019, the Veteran testified at a videoconference hearing before a second undersigned Veterans Law Judge. As two different Veterans Law Judges heard testimony concerning the issue on appeal, a panel of three Veterans Law Judges, including the two who presided over the hearings, must decide the issue. Accordingly, this decision is being rendered by a panel of three Veterans Law Judges. 38 U.S.C. §§ 7102(a), 7107(c). In September 2020 correspondence, the parties were offered an opportunity to testify at a hearing before a third Veterans Law Judge. Arneson v. Shinseki, 24 Vet. App. 379 (2011). However, neither party requested a third Board hearing. In August 2017, the Board remanded the appeal to provide the appellant with a Travel Board hearing. The Board also instructed the RO to provide the Veteran with a copy of the Appellant’s substantive appeal, which was completed in March 2018. Most recently, in January 2020, the Board remanded this matter to provide the appellant with a copy of the most recent Board hearing transcript and to afford her the opportunity to request a Board hearing. The Appellant did not request a hearing following notification from the RO. Thus, the Board will proceed with adjudication of the claim. Apportionment According to VA law, all or part of a veteran’s VA benefits may be apportioned on behalf of the veteran’s children if they are not in the veteran’s custody and the veteran is not reasonably discharging his or her responsibility for child support, otherwise known as general apportionment. 38 U.S.C. § 5307(a)(2); 38 C.F.R. § 3.450(a)(1)(ii). It is not necessary for the claimant to establish the existence of hardship to obtain a general apportionment under 38 C.F.R. § 3.450, but no apportionment will be made where the veteran is providing for dependents. 38 C.F.R. § 3.450(c). Here, the Appellant was the primary custodial parent of D.B. during the period on appeal; therefore, she was not in the Veteran’s custody. However, the record establishes that the Veteran made at least partial child support payments consistently to the Appellant during the appeal period. See Account Summary dated April 21, 2017. Indeed, the Veteran testified at the April 2017 Board hearing that he made such payments directly to a designated child support office. See April 2017 Board Hearing Transcript p. 7. The Appellant has further corroborated the Veteran’s efforts, stating that he did make intermittent payments and provided some financial support for their child. See DRO Hearing Transcript dated December 2010; Correspondence dated June 2020. Thus, the Board finds a general apportionment is not warranted in this case because the Veteran made consistent and reasonable child support payments for the care and welfare of D.B. VA regulations provide for a special apportionment of VA benefits between the veteran and his or her dependents based on the facts in the individual case where hardship is shown to exist, if it does not cause undue hardship to the other persons in interest. 38 C.F.R. § 3.451. In determining the basis for a special apportionment, consideration will be given to such factors as: 1) the amount of VA benefits payable; 2) other resources and income of the veteran and those dependents in whose behalf apportionment is claimed; and 3) special needs of the veteran, his or her dependents, and the apportionment claimants. Id. Regarding a special apportionment, based on a review of the financial information of record, the Appellant has demonstrated a financial need. Indeed, her expenses generally exceeded her reported income by between $100.00 and $400.00 during the period from August 2007 through November 2010. See Financial Status Report dated August 2007; VA Form 21-0788 dated December 2008; Financial Status Report dated August 2009; VA Form 21-0788 dated February 2010; VA Form 21-0788 dated November 2010. However, the applicable regulations provide for consideration not only for her needs but also those of the Veteran. See 38 C.F.R. § 3.451. As discussed, the role of VA is to make a determination as to whether an apportionment would constitute a financial hardship to both the appellant and the Veteran, based on their reported income and expenses. Given the reported income and expenses of the Veteran, an apportionment from his VA benefits would result in undue financial hardship for him. As the Veteran’s reported income and expenses were most recently reported in April 2017, the evidence indicates that he was receiving $559.75 in VA compensation benefits and had monthly expenses totaling $1,122.00 at that time. See Financial Status Report dated April 2017. Throughout the appeal period, the Veteran consistently reported having a monthly financial deficit of about $570.00. See VA Form 21-0788 dated June 2008 and January 2011. As a result, the Veteran’s expenses already exceeded his monthly income. Accordingly, based upon a review of the evidence of record, and in light of the evidence reflecting that the Veteran’s expenses exceeded his reported income for the period on appeal, it cannot be said that an apportionment would present no undue hardship to the Veteran. See 38 C.F.R. § 3.451. In sum, 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 was reasonably discharging his duty of support for D.B. by making partial monthly child support payments. The requirements for a special apportionment under 38 C.F.R. § 3.451 have not been met because such would result in a financial hardship on the Veteran. In reaching this conclusion, the Board is sympathetic to the Appellant in that, as noted above, she demonstrated a financial need. However, the Board emphasizes that the financial need of the appellant is not the sole consideration. Rather, the determination turns on whether an apportionment of the Veteran’s VA disability compensation would cause undue hardship to the Veteran. See 38 C.F.R. § 3.451. Considering the Veteran’s income and expenses, and for the reasons explained above, an apportionment is not warranted, as this would constitute undue financial hardship to him. The claim of entitlement to apportionment of the Veteran’s VA disability compensation benefits is denied. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Erin J. Trojanowski, 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.