Citation Nr: 21021158 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 13-03 171 DATE: April 9, 2021 ORDER For the period following September 27, 2010, entitlement to an apportionment of the Veteran’s VA compensation benefits is denied. FINDINGS OF FACT 1. B.S. and J.S. are the parties’ biological children. 2. The Veteran was released from incarceration in September 2010. 3. The appellant had custody of the parties’ children during the Veteran’s incarceration. 4. A July 2009 court order awarded temporary custody of B.S. and J.S. to the appellant. 5. A June 2020 decision awarded an apportionment to the appellant, on behalf of B.S. and J.S., for the period between April 10, 2010 and September 27, 2010. 6. Since her release from incarceration in September 2010, the Veteran has had custody of B.S. and J.S. CONCLUSION OF LAW Since September 27, 2010, 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 February 1996 to July 1997. The appellant is the father of the Veteran’s children. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2011 apportionment decision. The Board previously remanded this matter in July 2015 and April 2017 to ensure compliance with contested claims notification procedures. The Board notes that the claim was partially granted in June 2020, at which time the RO awarded an apportionment of the Veteran’s benefits to the appellant, on behalf of the parties’ children, for the period between April 10, 2010 and September 27, 2010. Thus, the Board will address the issue of entitlement to an apportionment for the period since September 27, 2010. The appellant seeks an apportionment of the Veteran’s VA compensation benefits on behalf of their children, B.S. and J.S. He previously asserted that he needed further financial support for the children and that he experienced financial hardship due to unemployment. See Correspondence dated May 2011. The record reflects that B.S. reached the age of 18 years in March 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. In November 2020, the Veteran submitted a VA Form 21-674, Request for Approval of School Attendance, which reflects that B.S. was attending college at that time and was expected to graduate in May 2022. Thus, he would be deemed a “child” for VA purposes. 38 C.F.R. § 3.57. 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 (2020). 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 (2012); 38 C.F.R. §§ 3.450, 3.452 (2020). 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 (2020). 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) (2020). The record reflects that the children were in the custody of the appellant prior to the Veteran’s release from incarceration in September 2010. Indeed, the appellant submitted a court order, in which he was awarded temporary physical custody of the parties’ children. The Board acknowledges this evidence, but emphasizes that this document indicates that the award of custody was only temporary. The Veteran has since reiterated that the children were returned to her custody in September 2010 and have remained in her care since that time. The appellant last contended that he had custody of the children in January 2013. However, he has provided no evidence in support of those contentions, nor any documentation regarding a permanent custody order implemented by the court. Thus, the sparse evidence of record indicates that the children temporarily resided with the appellant during the Veteran’s incarceration and were then returned to the Veteran’s custody. As such, the Board finds that the children did not reside with the appellant during the remaining portion of the appeal period. Therefore, the claim of entitlement to an apportionment of the Veteran’s VA disability compensation benefits for the period following September 27, 2010 must be denied. 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). (Continued on the next page)   (CONTINUED ON NEXT PAGE) 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.