Citation Nr: 21027680 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 07-13 719 DATE: May 6, 2021 ORDER A special apportionment to the appellant, on behalf of I.F., P.F., and N.F. (the Veteran's children), in the amount of the dependency allowance received for each child from the Veteran's VA disability compensation benefits is granted. FINDINGS OF FACT 1. I.F., P.F., and N.F. are the Veteran's biological children. 2. The appellant was the legal and physical guardian of I.F. and P.F. until they turned 18 on June [REDACTED], 2010 and June [REDACTED], 2014, respectively; she is currently the legal and primary physical guardian of N.F. 3. The appellant has demonstrated financial hardship for the period on appeal. 4. A special apportionment of the Veteran's VA disability compensation benefits, in the amount of the dependency allowance for the three children, would not create an undue financial hardship to the Veteran. CONCLUSION OF LAW The criteria for a special apportionment of the Veteran's VA compensation benefits to the appellant, on behalf of the children, in the amount of the dependency allowance received for each child 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 served on active duty in the United States Army from September 1990 to April 1997. The appellant is the mother of the Veteran's children, I.F., P.F., and N.F. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is currently with the RO in Atlanta, Georgia. Additionally, the appellant originally requested a hearing regarding her claim. However, in November 2007 correspondence, she withdrew her hearing request. Thus, the request is deemed withdrawn and the Board will proceed with adjudication of the claim. The Board remanded this appeal in December 2010 and December 2017 for further development. In October 2019, the Board issued a decision awarding an apportionment to the appellant in the amount of the VA dependency benefits received by the Veteran on behalf of the parties' three children. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). By a December 2020 Order, the Court, pursuant to a Joint Motion for Remand (JMR), vacated the Board's October 2019 decision and remanded the case for action consistent with the JMR. A special apportionment to the appellant, on behalf of I.F., P.F., and N.F. (the Veteran's children), in the amount of the dependency allowance received for each child from the Veteran's VA disability compensation benefits is granted. The appellant seeks an apportionment of the Veteran's VA compensation benefits on behalf of their children, I.F. and P.F., who have turned 18 since the date of filing of this claim in July 2006, as well as their minor child N.F. She has asserted that she needed further financial support for her children throughout the appeal period and that she experienced financial hardship. See Correspondence dated February 2016; Notice of Disagreement dated February 2007. The appellant has reported that the Veteran did not make full and consistent child support payments for their children. Since the date of claim, I.F. turned 18 on June [REDACTED], 2010 and P.F. turned 18 on June [REDACTED], 2014. 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. The record reflects that P.F. was enrolled in college to pursue further education following graduation from high school. See Report of School Attendance dated July 2014. Thus, she was still considered a minor for the purposes of this claim until the date of her college graduation in May 2018. 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.667. However, no information has been provided regarding the date of I.F.'s high school graduation or any college attendance. As such, the Board will consider an award of apportionment prior to June 15, 2010 for I.F and prior to May 18, 2018 for P.F. 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 "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). Here, the appellant had primary physical custody of the three children throughout the appeal period, until I.F. and P.F. attained the age of 18. She continues to have custody of N.F. The Board acknowledges the Veteran's contentions that the youngest child resides with him on holidays and during the summer. However, there has been no official documentation submitted to reflect that the Veteran legally obtained primary physical of N.F. Indeed, the April 2008 Judgement of Divorce states that primary residential custody was awarded to the appellant. This would indicate that N.F. primarily resided with the appellant throughout the period on appeal, as no evidence to the contrary has been provided. The evidence of record reflects that the April 2008 Judgement of Divorce required that the Veteran make monthly child support payments to the appellant for the care of their children. Child support documents dated January 2011 reflect that the monthly amount charged to the Veteran was $337.20. Although an arrearage of $5,264.53 was noted as of August 2015, documentation from the State of Michigan reflects that the Veteran had made child support payments throughout the appeal period. The Board does note that these payments were somewhat infrequent and sporadic between 2007 and 2011. However, based on the foregoing, the Board finds that the Veteran reasonably discharged his responsibility for the children's wellbeing by paying child support to the appellant. Thus, an award of a general apportionment 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 generally exceeded her income by between $150.00 and $500.00 throughout the appeal period. The Board does note that the appellant's income slightly exceeded her reported expenses in October 2016. However, the evidence as a whole supports a finding of financial hardship on behalf of the appellant. The Board further finds that a special apportionment of the Veteran's VA disability compensation benefits, in the amount of the dependency benefits for each child, to the appellant on behalf of I.F., P.F., and N.F. is warranted. Specifically, the appellant is entitled to the dependency allowance received by the Veteran for I.F. and P.F. prior to June 15, 2010 and May 18, 2018, respectively. Additionally, the appellant shall be awarded the dependency allowance the Veteran has received for N.F. from the date of the claim to the present day, until he reaches age 18. These amounts are equivalent to the additional VA dependency allowance the Veteran received on behalf of each child during the period on appeal. The Board emphasizes that the Veteran cannot prevail on a claim of hardship when, as in the instant case, he is receiving additional benefits for his dependents 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, considering his limited monthly income and reported monthly expenses. Based on the foregoing, the Board finds that the appellant has demonstrated financial hardship. As such, an apportionment of the Veteran's VA disability benefits in the amount of the dependency benefits received for the parties' three children is warranted. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.