Citation Nr: 21021159 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 13-20 012 DATE: April 9, 2021 ORDER Entitlement to an increased apportionment of the Veteran's VA pension benefits is denied. FINDINGS OF FACT 1. The Veteran is the father to J.D. and J.D. 2. The Veteran was not reasonably discharging his duty of support to the children during the pendency of the appeal. 3. The appellant has shown a financial hardship. 4. An apportionment of the Veteran’s VA compensation benefits would cause a financial hardship for the Veteran. CONCLUSION OF LAW The criteria for an apportionment of the Veteran’s VA compensation benefits have not been met. 38 U.S.C. § 5307; 38 C.F.R. §§ 3.450, 3.451. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1972 to January 1976. The appellant is the mother of the Veteran’s children. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2011 decision of the VA Regional Office (RO), which denied entitlement to an increased apportionment of the Veteran’s compensation benefits to the appellant, on behalf of the minor children J.D. and J.D. This matter was previously remanded by the Board in April 2015, June 2017, and July 2020 for compliance with the contested claims procedures and further development. At the outset the Board notes the difficult history of this appeal in ensuring that all parties have received the necessary documents, with multiple attempts finding the documents returned to VA. However, the most recent supplemental statement of the case and Board docketing letters were sent to the most recent addresses on file and have not been returned as undeliverable. Additionally, all documents were sent to the most recent addresses of record. Thus, the Board finds that sufficient notice has been provided in this case. 38 C.F.R. § 20.505. The appellant seeks an increased apportionment of the Veteran’s VA compensation benefits. She asserts that despite the apportioned share of the Veteran’s benefits, she continued to experience a hardship. 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 spouse or children, and the Veteran is not reasonably discharging his 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 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 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 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 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). Here, the appellant is the mother of J.D. and J.D., the Veteran’s children. The Board notes that as of June 2017, both children had reached age 18 and the apportionment had stopped being paid. Thus, the Board will only consider an increased share through June 2017. In this case, the appellant was awarded an apportionment of the Veteran’s VA compensation benefits in the amount of $110.00 per month, $55.00 per child, in a February 2011 decision. In June 2012, the apportionment was reduced to $55.00 as J.D. had reached age 18. At that time, the Veteran had not responded to requests for information regarding his income and expenses. In August 2013, the Veteran supplied income and expense information showing $1,287.00 per month in income and $1,207.00 per month in expenses. Records reflect the Veteran was receiving $1,332.00 at that time, with $55.00 being withheld for the appellant’s apportionment. Further, the Veteran’s statement reflects $300.00 per month being paid in additional child support. The appellant’s January 2011 submission showed no income, and showed expenses of $110.00 per month. In calculating expenses, the Board is not including the amount listed for food as the appellant has stated she receives supplemental nutrition assistance, but did not include that in her income. Thus, she had a deficit of $110.00 per month. In August 2016, the appellant updated her financial information showing $55.00 in income and approximately $710.00 per month in expenses. She also indicated that she received support from an adult son. Given the reported income and expenses of the Veteran, an increase in the apportionment from his VA benefits would result in undue financial hardship for him, seriously undermining his ability to afford the basic necessities of life. Accordingly, based upon a review of the evidence of record, it cannot be said that an increased apportionment would present no undue hardship to the Veteran. The requirements for an increased apportionment under 38 C.F.R. §§ 3.450 and 3.451 have not been met, because it would result in a financial hardship on the Veteran. In reaching this conclusion, the Board is sympathetic to the appellant in that, as noted, she clearly demonstrated a financial need during the relevant period. However, the Board emphasizes that the financial need of the appellant is not the sole consideration. Rather, the determination turns on whether an increased apportionment of the Veteran’s VA benefits would cause undue hardship to the Veteran. See 38 C.F.R. § 3.451. And here, in light of the Veteran’s income and expenses, and for the reasons explained above, the Board has determined that an increased apportionment is not warranted as this would constitute undue financial hardship to him. As a result, the claim of entitlement to an additional apportionment of the Veteran’s VA disability compensation benefits must be denied. 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). A. ADAMSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Uller, 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.