Citation Nr: 21021628 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 18-02 773 DATE: April 13, 2021 ORDER A special 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 S.C.C. is granted. FINDINGS OF FACT 1. S.C.C. is the Veteran’s biological dependent adult child. 2. The appellant is the physical custodian of S.C.C. 3. The appellant has demonstrated financial hardship as her expenses generally exceed her income. 4. A special apportionment in the amount of the dependency allowance for S.C.C. from the Veteran’s disability compensation benefits does not result in undue hardship on the Veteran. CONCLUSION OF LAW The criteria for an apportionment in the amount of the dependency allowance for S.C.C. from the Veteran’s VA disability compensation benefits have been met. 38 U.S.C. § 5307; 38 C.F.R. §§ 3.450, 3.451, 3.452, 3.453, 3.458, 3.503, 3.667. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from. The appellant is the mother and custodian of the Veteran’s dependent adult child, S.C.C. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 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 child. In March 2019, the Board remanded the matter for further development. The matter has been returned to the Board. 1. A special 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 S.C.C. The appellant seeks an apportionment of the Veteran’s VA compensation benefits for the benefit of the dependent adult child, S.C.C. She asserts that since the Veteran has claimed S.C.C. as a helpless child and receives additional dependency benefits for S.C.C., the Social Security Administration (SSA) has informed her they will reduce S.C.C.’s benefits. 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). 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). Here, the appellant is the former spouse of the Veteran and the mother of his child, S.C.C., for whom an apportionment was sought. In this case, the appellant acknowledges S.C.C. received $304.00 per month from SSA in her August 2015 VA Form 21-0788 (Information Regarding Apportionment of Beneficiary’s Award). In June 2020, the appellant submitted documentation from SSA that this benefit paid to S.C.C. was not reducing the benefit of the disabled worker (the Veteran) on whose record S.C.C. received benefits. Regarding a special apportionment, based on a review of the financial information of record, the appellant demonstrated a financial need, as expenses exceeded reported income. In the May 2020 Form 21-0788, the appellant reported monthly income of $803.00 and monthly expenses of approximately $890.00. Thus, there was a deficit of approximately $85.00 per month. 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. 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 their reported income and expenses. In the Veteran’s September 2015 Form 21-0788, he reported expenses of over $4000.00 per month and income of $4,144.00 per month. The Veteran has a marginal surplus per month. After a review of all the evidence, the Board finds that a special apportionment of the Veteran’s VA disability compensation benefits, in the amount of dependency benefits received for the helpless child to the appellant on behalf of S.C.C. is warranted. This amount is equivalent to the additional dependency allowance the Veteran receives for S.C.C. The Board notes the Veteran cannot prevail on a claim of hardship when he is receiving additional benefits for his dependent 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, given the relatively small amount of income that exceeds expenses. Based on the foregoing, the Board finds that the appellant has demonstrated financial hardship, and an apportionment of the Veteran’s VA disability compensation benefits in the amount of dependency benefits received for the dependent adult child would not cause him undue financial hardship. As such, the Board finds that an apportionment of the Veteran’s VA disability compensation benefits to the appellant, in the amount of the dependency benefits received for the dependent adult child, is warranted. MARJORIE A. AUER 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