Citation Nr: 21011029 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 11-02 756A DATE: February 26, 2021 ORDER Entitlement to an apportionment of the Veteran’s VA disability compensation benefits is denied. FINDINGS OF FACT 1. C.H. is the Veteran’s biological child. 2. The appellant was the legal guardian of C.H. during the period on appeal. 3. An undue burden to the Veteran would result from an apportionment of his VA compensation benefits. CONCLUSION OF LAW The criteria for entitlement to an apportionment of the Veteran’s VA disability compensation benefits have not been met. 38 U.S.C. § 5307 (2012); 38 C.F.R. §§ 3.450, 3.451 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1989 to October 1995. The appellant is the mother of the Veteran’s child, C.H. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appellant originally requested a Board hearing on the March 2011 VA Form 9. A hearing was scheduled for February 2015. However, both parties failed to appear, and it was unclear if the hearing notice was mailed to the appellant’s correct address. In September 2020 and December 2020, the Veteran and the appellant, respectively, were provided with an opportunity to schedule a new Board hearing. However, neither party requested a Board hearing at that time. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704 (d). The Board previously remanded this matter in May 2015 and January 2019 for further development. Additionally, there is no indication that a copy of the appellant’s March 2011 VA Form 9 or a transcript of the June 2014 DRO hearing was provided to the Veteran. However, the content of the DRO hearing was general in nature and did not contain additional argument. Additionally, the March 2011 Form 9 was blank, with no additional argument. Thus, the Board will proceed with adjudication of the appeal. Entitlement to an apportionment of the Veteran’s VA disability compensation benefits is denied. The appellant seeks an apportionment of the Veteran’s VA compensation benefits on behalf of their child, C.H. In October 2009, she stated that the Veteran was not making any child support payments for the care of their child. She further reported that she and C.H. had lost their home and were receiving food stamps. The record also reflects that the appellant filed for bankruptcy in June 2014. See Correspondence dated June 19, 2014. Since the date of claim, C.H. turned 18 in February 2014, and the appellant submitted evidence indicating that he continued attending high school until June 2014. See Statement dated November 5, 2018. In general, the term “child of the Veteran” includes an unmarried person who is under the age of 18 years; or who, before reaching the age of 18 years, became permanently incapable of self-support; or who after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 C.F.R. § 3.57. As C.H. reached 18 years of age in February 2014 and continued to attend high school until June 2014, the Board will consider an award of apportionment prior to the month of his high school graduation. VA regulations provide for two types of apportionments. A “general” apportionment may be paid under the circumstances set forth in 38 C.F.R. § 3.450. Specifically, the law provides that all or any part of the Veteran’s VA compensation benefits may be apportioned if the Veteran is not residing with his or her spouse or children, and the Veteran is not reasonably discharging his or her responsibility for the support of the spouse or children. 38 U.S.C. § 5307; 38 C.F.R. §§ 3.450, 3.452. Notably, 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 (2020). See Hall v. Brown, 5 Vet. App. 294 (1993). The second type of apportionment is a “special” apportionment, which may be paid under the circumstances set forth in 38 C.F.R. § 3.451. That regulation provides that, without regard to any other provision regarding apportionment, where hardship is shown to exist, compensation may be apportioned between the Veteran and his or her 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 on whose behalf the apportionment is claimed, and the special needs of the Veteran, his or her dependents, and the apportionment claimants. 38 C.F.R. § 3.451 provides further that apportionment of more than 50 percent of the Veteran’s benefits is ordinarily considered to constitute undue hardship on him or her, while apportionment of less than 20 percent of his or her benefits is ordinarily considered insufficient to constitute a reasonable basis for any apportionee. 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) (2018). The “benefit-of-the-doubt” rule is not for application in a contested claim such as this case because the benefit of the doubt cannot be given to both the appellant and the Veteran. See Elias v. Brown, 10 Vet. App. 259, 263 (1997). Here, C.H. was not in the Veteran’s full physical custody at any point during the appeal period. The appellant was awarded custody of C.H. in February 1996. See Custody Order dated February 1996. The evidence of record reflects that a June 2009 administrative support order required the Veteran to make monthly payments of $600.00 in child support to the appellant for the care of their child. However, child support documents indicate that he failed to make consistent payments since that time. As of June 2014, the Veteran owed $46,010.10 to the appellant in arrears. See Payment Record Letter dated June 2014. However, based upon the Veteran’s financial situation, the Board finds that an award of a general apportionment would result in undue hardship on the Veteran. The Board notes that the Veteran received about $250.00 in monthly VA compensation benefits during the appeal period. He remains rated at only 20 percent for his service-connected disabilities and currently receives about $280.00 in monthly VA benefits. Additionally, the record reflects that the Veteran did not receive an additional dependency allowance for the parties’ child from the VA throughout the period on appeal. An apportionment in any amount would make it difficult for him to provide for his basic necessities. See 38 C.F.R. § 1.965 (a)(3) (indicating “undue hardship” results when a person is deprived of basic necessities). Thus, based upon the financial situation of the Veteran, the Board finds that an award of a general apportionment of his monthly VA compensation benefits would result in undue hardship. Accordingly, the requirements for a general apportionment are not met. See 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 demonstrated financial hardship, as her reported income exceeded her monthly expenses throughout the appeal period. 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 the reported income and expenses. As discussed above, the Board finds that (with respect to both a general and special apportionment), given the financial situation of the Veteran, an apportionment from his VA benefits would result in undue financial hardship for him, seriously undermining his ability to afford the basic necessities of life. (Continued on the next page)   For the reasons explained above, the Board has determined that an apportionment is not warranted, as such would constitute undue financial hardship to the Veteran, and the claim is denied. 38 U.S.C. § 5307; 38 C.F.R. §§ 3.450, 3.451. MICHAEL KILCOYNE 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.