Citation Nr: 21030702 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-60 458 DATE: May 19, 2021 ORDER Entitlement to an apportionment of the Veteran's VA compensation benefits (to the appellant in her own right) is denied. FINDING OF FACT Any apportionment of the Veteran's VA compensation benefits would cause an undue financial hardship on the Veteran. CONCLUSION OF LAW The criteria for entitlement to 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 FINDING AND CONCLUSION The Veteran served on active duty from October 2001 to March 2002 and from January 2003 to May 2006. The appellant is his former spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in October 2020 for compliance with the contested claims procedures. A review of the record indicates that the Board's directives were substantially complied with, such that further remand is not warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an apportionment of the Veteran's VA compensation benefits (to the appellant in her own right) At the outset, the Board notes the complicated history of the present claim. This decision addresses the appellant's appeal of the October 2014 decision that denied the appellant an apportionment of the Veteran's benefits. In October 2020, the Board remanded the claim as to the propriety of the termination of the apportionment of the Veteran's VA compensation benefits for the benefit of J.J., I.J., and D.J. for the issuance of a statement of the case in response to the appellant's notice of disagreement. Thus, the only remaining issue before the Board is the entitlement to an apportionment of the Veteran's VA compensation benefits to the appellant. The record indicates that the Veteran and the appellant were divorced during the pendency of this appeal. Thus, the Board will not consider an apportionment after May 2017, the month in which the parties were divorced. The appellant seeks an apportionment of the Veteran's VA compensation benefits for her own benefit. She asserts that the Veteran has not been discharging his responsibility towards her since they have been separated, and that she is experiencing financial 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). 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 was the spouse of the Veteran at the time the claim was filed and the record shows that they were not living together. However, they divorced in May 2017. The appellant provided evidence that the Veteran was paying at least $250.00 per month. Further, the appellant was awarded an apportionment for the minor children in the amount of $600.00 per month. Thus, it cannot be said that the Veteran was not providing reasonable support to the appellant, and the threshold requirements for a general apportionment have not been met. 38 U.S.C. § 5307(a)(2); 38 C.F.R. § 3.450(a)(1)(ii). Regarding a special apportionment, the Board further finds that, given the reported income and expenses of the Veteran, an apportionment from his VA benefits would result in undue financial hardship for him, seriously undermining his ability to afford the basic necessities of life. The record reflects that he is currently 100 percent service-connected and is paid for five dependents, to include the appellant's minor children. The Veteran reported income and expenses several times during the appeal period. In January 2015, the Veteran reported expenses of $2,600.00 and income of $2,681.00, leaving a surplus of $81.00 per month. In January 2016, the Veteran reported expenses of $4,473 per month and income of $4,445.30 per month, creating a deficit of $32.70 per month. In July 2014, the appellant reported expense of $2,792.00 per month and income of $1,126.00 per month, leaving a deficit of $1,666.00 per month. In August 2012, the appellant reported expenses of $3,007.00 per month and income of $268.00. leaving a deficit of $2,739.00 per month. The appellant has clearly demonstrated a financial need, as her expenses exceeded her reported income throughout the period on appeal. 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 this instance, the monthly surplus of the Veteran would not be sufficient to provide an adequate apportionment for the appellant. At most the Veteran had a surplus of $81.00 per month. The Veteran's total monthly benefit was $3,337.00, and the minimum special apportionment that would be deemed reasonable would be $667.00. See 38 C.F.R. § 3.451. As such, the minimum apportionment deemed reasonable for the support for the appellant would cause the Veteran a financial hardship. Further, for much of the appeal period, the Veteran reported a deficit. During the periods where the Veteran did not report a monthly deficit, his surplus was minimal. Thus, any apportionment less than the minimum reasonable amount would also cause a hardship for the Veteran. (Continued on the next page) The requirements for an apportionment under 38 C.F.R. § 3.450 have not been met because the Veteran was providing support to the appellant. Further, the requirements for an apportionment under 38 C.F.R. § 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 apportionment of the Veteran's VA disability compensation 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 apportionment is not warranted as this would constitute undue financial hardship to him. As a result, the claim of entitlement to apportionment of the Veteran's VA disability compensation benefits must be denied. MICHAEL E. KILCOYNE 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.