Citation Nr: 21015761 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-07 697 DATE: March 18, 2021 ORDER Entitlement to an apportionment of the Veteran’s VA disability compensation benefits is denied. FINDINGS OF FACT 1. M.R.C. is the Veteran’s biological child. 2. M.R.C. turned 18 on August [REDACTED], 2020. 3. Throughout the appeal period, the appellant had physical custody of M.R.C. 4. Throughout the appeal period, the Veteran was reasonably discharging his duty of support for M.R.C. 5. An apportionment of the Veteran’s VA benefits would create an undue financial hardship to the Veteran. 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 October 1986 to July 1987. The appellant is the mother of the Veteran’s child, M.R.C. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant’s claim of entitlement to apportionment of the Veteran’s VA disability compensation benefits on behalf of their son, M.R.C. In February 2019, the Board remanded this matter for further development. The Board finds that the RO has sufficiently complied with those remand directives. Additionally, there is no indication that a copy of the appellant’s February 2017 VA Form 9 was provided to the Veteran. However, the content of the substantive appeal was general in nature and did not contain 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 the parties’ child, M.R.C. She has asserted that the Veteran did not provide consistent child support payments for the care of their son. See Form 9 dated February 2017. Since the date of claim, M.R.C. turned 18 on August [REDACTED], 2020. 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. No information has been provided regarding the date of M.R.C.’s high school graduation. As such, the Board will consider an award of apportionment prior to August [REDACTED], 2020. 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 or her spouse or children, and the veteran is not reasonably discharging his or her 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 or her 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 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 in whose behalf the apportionment is claimed, and the special needs of the veteran, his or her 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 or her 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). The record reflects that the Veteran is the biological father of the parties’ child M.R.C., who was in the primary custody of the appellant prior to his 18th birthday. The Board notes that the Veteran does not contend otherwise. Therefore, to obtain a general apportionment, the appellant must establish that the Veteran did not reasonably discharge his responsibility for the support of their son. After a review of the evidence, the Board finds that the Veteran reasonably discharged his responsibility for the parties’ child during the appeal period. Indeed, the record reflects that a court order dated June 2015 required the Veteran to pay $36.00 in weekly child support to the appellant on behalf of M.R.C. The Board notes that the payments made by the Veteran were occasionally sporadic during certain portions of the appeal period. However, documentation provided by the appellant reflects that the Veteran consistently made partial child support payments between November 2014 and January 2019. See Disbursement History dated January 2019. Additionally, the appellant has conceded that the Veteran made weekly child support payments. See VA Form 21-0788 dated January 2016 and April 2016. Based on the foregoing, the Board finds that the Veteran reasonably discharged his responsibility for M.R.C.’s wellbeing by paying child support to the appellant. Award of a general apportionment, therefore, is not warranted. Having determined that the appellant is not entitled to a general apportionment, the Board must now determine whether entitlement to a special apportionment is established. Regarding a special apportionment, based on a review of the financial information of record, the appellant demonstrated a financial need, as her expenses occasionally exceeded her reported income. See VA Form 21-0788 dated January 2016 and February 2020. The Board does note that the appellant’s income exceeded her reported expenses in April 2015 and April 2016. 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. After a review of the evidence, the Board finds that a special apportionment of the Veteran’s VA compensation benefits is not warranted. The Board notes that the Veteran received between $836.00 and $893.00 in monthly VA compensation benefits during the appeal period. He remains rated at 50 percent for his service-connected disabilities and currently receives about $893.43 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. The Board notes that court documents related to the calculation of the child support award for M.R.C. indicate that the Veteran was employed at Home Depot in June 2015. However, at that time, the appellant was earning a greater annual income than that of the Veteran. Furthermore, it is reasonable to assume that the monthly VA benefits received by the Veteran were used to assist in making the documented monthly child support payments to the appellant. 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). Given the financial situation of the Veteran, an apportionment from his VA benefits would result in undue financial hardship for him. Special apportionment, therefore, is also not warranted. 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; the claim is denied. 38 U.S.C. § 5307; 38 C.F.R. §§ 3.450, 3.451. A. ADAMSON Acting 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.