Citation Nr: 21029636 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 09-15 393 DATE: May 14, 2021 ORDER 1. A general apportionment of the Veteran's VA disability compensation benefits to the appellant, in the amount of the dependency allowance for a spouse, is granted prior to May [REDACTED], 2009. 2. An apportionment of the Veteran's VA disability compensation benefits to the appellant, on behalf of the child, J.C., is denied. FINDINGS OF FACT 1. The Veteran and appellant were married in May 2005. 2. The parties' divorce was finalized on May [REDACTED], 2009. 3. Prior to May [REDACTED], 2009, the Veteran did not reasonably discharge his duty of support for the appellant. 4. A general apportionment in the amount of the dependency allowance for a spouse from the Veteran's VA disability compensation benefits would not result in undue hardship on the Veteran for the period prior to May [REDACTED], 2009. 5. During the period on appeal, the appellant's daughter J.C., the Veteran's stepchild, was not a member of the Veteran's household. CONCLUSIONS OF LAW 1. Prior to May [REDACTED], 2009, the criteria for a general apportionment of the Veteran's VA disability compensation benefits to the appellant, in the amount of the dependency allowance for a spouse, have been met. 38 U.S.C. § 5307 (2012); 38 C.F.R. §§ 3.450 (2020). 2. Throughout the period on appeal, the criteria for an apportionment of the Veteran's compensation benefits on behalf of the appellant's child have not been met. 38 U.S.C. § 5307 (2012); 38 C.F.R. §§ 3.57, 3.450, 3.451, 3.452, 3.458 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1970 to May 1972. The appellant is the Veteran's former spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter in May 2012 and May 2018 for further development regarding contested claims procedures. The Board is satisfied that there has been substantial compliance with the Board's remand directives. Thus, no further action is required. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the appellant previously requested a Board hearing regarding this appeal. In August 2020, VA sent the appellant a letter clarifying if she wanted a hearing. As of this date, the appellant has not responded. Therefore, the Board will move forward to final adjudication. Finally, the Board notes that the Veteran has submitted documentation appointing his son as his "agent." A power of attorney may be revoked at any time, and unless specifically noted otherwise, receipt of a new power of attorney constitutes a revocation of an existing power of attorney. 38 C.F.R. § 14.631 (f)(1). Therefore, the Board finds that this submission revoked the Veteran's prior power of attorney, which was held by Disabled American Veterans. However, to represent a client before VA, an agent must be accredited and there is no evidence to indicate the Veteran's son has been accredited. Thus, the Veteran is not recognized to have a representative at the present time. 1. A general apportionment of the Veteran's VA disability compensation benefits to the appellant, in the amount of the dependency allowance for a spouse, is granted. In August 2006, the appellant filed a claim for an apportionment of the Veteran's VA compensation benefits due to financial hardship. She has not indicated that she received any support from the Veteran during their separation. Initially, the record reflects that the Veteran and appellant were divorced on May [REDACTED], 2009. See May 2009 Final Judgement and Decree of Divorce. Upon a divorce from a veteran, the ex-spouse loses status as a veteran's spouse, including any potential entitlement to an apportionment of VA disability compensation, effective from the date of the divorce. See 38 U.S.C. § 101 (31) (2012); 38 C.F.R. §§ 3.1(j), 3.50 (2020); Marrero v. Gober, 14 Vet. App. 80, 82 (2000). Indeed, a divorce severs the dependent relationship. Here, as the appellant and Veteran were divorced on May [REDACTED], 2009, the Board will address the issue of entitlement to an apportionment for the period prior to that date. 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. 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; 38 C.F.R. §§ 3.450, 3.452. 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. 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. 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). 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 Veteran and the appellant were married in May 2005. The parties have each indicated that they were separated during the period on appeal. Additionally, there is no evidence that the Veteran provided financial support for his wife during their separation. The Board acknowledges his contentions that the appellant had access to his bank accounts while she was appointed as his power of attorney during his incarceration. However, the appellant provided documentation to confirm that she no longer had power of attorney over the Veteran's affairs as of June 2006. See SunTrust Bank Documentation dated April 2009. As the current claim on appeal was filed in August 2006, two months after the termination of the power of attorney, there is no evidence of any financial support provided to her by the Veteran. As such, the threshold requirements for a general apportionment have been met. 38 U.S.C. § 5307(a)(2); 38 C.F.R. § 3.450(a)(1)(ii). The Board further finds a general apportionment is warranted in the amount of the dependency allowance awarded for a spouse. This amount is equivalent to the additional dependency allowance the Veteran received on behalf of the appellant during their period of separation. Indeed, prior to the parties' divorce, the Veteran continued to receive dependency benefits on behalf of his wife, which were properly owed to the appellant. Furthermore, 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 due to his limited monthly income. In sum, the criteria for a general apportionment of the Veteran's VA benefits have been met. 38 U.S.C. § 5307; 38 C.F.R. § 3.450. The Veteran did not provide financial support for the appellant during their separation and an apportionment of the dependency allowance he received on her behalf cannot, as matter of law, result in undue hardship to him. See Hall, 5 Vet. App. at 295. As a result, a general apportionment to the appellant, in the amount of the dependency allowance the Veteran received on her behalf, is granted prior to May [REDACTED], 2009. 2. An apportionment of the Veteran's VA disability compensation benefits to the appellant, on behalf of the child, J.C., is denied. The Board notes that the appellant originally sought an apportionment on behalf of her daughter, J.C., who was the Veteran's stepdaughter during their marriage. However, the Board finds that apportionment benefits are not available. Under 38 U.S.C. § 101 (4) (A) (iii) and 38 C.F.R. § 3.57 (a) and (b), the term "child" excludes a stepchild who is no longer a member of the Veteran's household. As noted above, the appellant reported that she and her daughter no longer resided with the Veteran as of the date of claim in August 2006, as the parties were separated at that time. Thus, J.C. ceased being the Veteran's "stepchild" for VA purposes when she and the appellant ceased being members of the Veteran's household. As the regulations only provide apportionment benefits to either a spouse or a child of the Veteran as defined by statute and regulation, the appellant's child falls outside the scope of VA regulations. Thus, the appellant's daughter does not qualify for apportionment under VA laws and regulations. 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.