Citation Nr: 21012073 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 18-01 560 DATE: March 3, 2021 ORDER A general apportionment to the appellant in the amount of the dependency allowance for the dependent children from the Veteran's VA disability compensation benefits, on behalf of E.L. and C.L., from August 2013 through September 2019 is granted. FINDINGS OF FACT 1. E.L. and C.L. are the Veteran’s biological children. 2. The appellant had primary physical custody of E.L. and C.L from August 2013 through September 2019. 3. The Veteran did not reasonably discharge his duty of support for E.L. and C.L. during the appeal period. 4. A general apportionment in the amount of the dependency allowance for E.L. and C.L. from the Veteran’s disability compensation benefits does not result in undue hardship on the Veteran for the relevant period on appeal. CONCLUSION OF LAW The criteria for a general apportionment in the amount of the dependency allowance for E.L. and C.L. from the Veteran’s VA disability compensation benefits from August 2013 through September 2019 have been met. 38 U.S.C. § 5307; 38 C.F.R. §§ 3.450. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active duty service in the United States Army from January 1996 to February 2001. For her meritorious service, the Veteran was awarded (among other decorations) the Army Achievement Medal. The appellant in this case is the mother of the parties’ children, C.L. and E.L. During the pendency of the appeal, C.L. turned 18 years old and was no longer a minor child. However, C.L. continued to pursue further education until September 2019. Thus, she was no longer a minor child for whom an apportionment could be made as of the date she stopped pursuing her education as she had previously turned 18 years old on July [REDACTED], 2017. Accordingly, the Board notes that the period on appeal for apportionment for C.L. is from August 2013 through September 2019. Additionally, E.L. has lived with the Veteran since October 2019. Therefore, the Board notes the period on appeal for apportionment for E.L. is from August 2013 through September 2019. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied an apportionment of the Veteran’s benefits to the appellant on behalf of their children. In June 2020, both parties testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In October 2020, the Board remanded the issue for compliance with contested claims procedures and further development. The matter has been returned to the Board. 1. A general apportionment to the appellant in the amount of the dependency allowance for the dependent child from the Veteran's VA disability compensation benefits, on behalf of E.L. and C.L. The appellant in this case, the mother of the Veteran’s children, E.L. and C.L., filed a claim for an apportionment of the Veteran’s VA compensation benefits in August 2013. She reported that the Veteran was not providing financial support for their children. 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. 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). 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). As noted above, the evidence indicates that the children were in the appellant’s primary physical custody through September 2019. In September 2019 C.L. stopped pursuing her education and was no longer eligible for apportionment. Additionally, E.L. began primarily living with the Veteran in October 2019. Therefore, the appellant will be considered the physical custodian of the child during the period on appeal, which is from August 2013 through September 2019. Furthermore, the appellant reported in August 2013 that the Veteran had not provided any financial support for their children. In January 2015, the appellant submitted a June 2013 Credit Reporting Agency Notice that showed the Veteran’s support payment arrearage was $18,059.78. In August 2016, the appellant submitted an August 2016 Case Payment History that showed the total arrears owed was $23,874.93 and his monthly support obligation was $290.00. At the June 2020 hearing, the Veteran testified that his only income throughout the appeal period was his VA disability compensation benefits. He further stated that he did not have enough income to pay child support and support himself. He began making payments toward his child support arrearage in April 2020. However, the Veteran has not provided any evidence that he made consistent child support payments to the appellant from August 2013 through September 2019, the period on appeal. Thus, the Board finds the evidence of record establishes that the Veteran was not reasonably discharging his responsibility for support for his children. 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 general apportionment is warranted in the amount of the dependency allowance for a veteran with dependent children. The record indicates that the Veteran received dependency benefits for his children during the appeal period. The children are entitled to share the dependency benefits received by the Veteran on their behalf. The amount apportioned by this decision is equivalent to the additional dependency allowance the Veteran received for E.L. and C.L. The Board notes the Veteran cannot prevail on a claim of hardship when he is receiving additional benefits for his dependent children and the apportioned amount is no more than the additional benefits. See Hall v. Brown, 5 Vet. App. 294, 295 (1993). Yet, the Board does find an apportionment in excess of the dependency allowance would result in undue hardship in the Veteran’s case, based upon his limited monthly income. (Continued on next page) In sum, the criteria for a monthly general apportionment of the Veteran’s VA benefits on behalf of his children, E.L. and C.L. have been met. 38 U.S.C. § 5307; 38 C.F.R. § 3.450. The Veteran was not providing for his children consistently during the period on appeal, and an apportionment of the dependency allowance he received on E.L. and C.L.’s account during this period cannot, as matter of law, result in undue hardship to him. See Hall, 5 Vet. App. at 295. As a result, a general apportionment to the appellant in the amount of dependency benefits the Veteran received on behalf of E.L. and C.L. is granted. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kelly A. Gastoukian 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.