Citation Nr: 21030714 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 19-16 412 DATE: May 19, 2021 ORDER Entitlement to an apportionment of the Veteran's VA disability compensation benefits is denied. FINDINGS OF FACT 1. J.M. and S.M. are the Veteran's biological children. 2. The appellant had physical custody of S.M. prior to June [REDACTED], 2015, and of J.M. prior to April [REDACTED], 2020. 3. The appellant, whose apportionment claim was initiated in 2017, does not have legal standing to receive an apportionment on S.M.'s behalf beyond her 18th birthday, June [REDACTED], 2015. 4. Prior to April [REDACTED], 2020, the 18th birthday of J.M., the Veteran was reasonably discharging his duty of support for J.M. 5. An apportionment of the Veteran's VA benefits would create an undue financial hardship to 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 (2012); 38 C.F.R. §§ 3.450, 3.451, 3.452, 3.453, 3.458, 3.503, 3.667 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1979 to May 1981. The appellant is the mother of the parties' children, J.M. and S.M. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Board remanded this matter for further development. Entitlement to an apportionment of the Veteran's VA disability compensation benefits is denied. The appellant seeks an apportionment of the Veteran's VA compensation benefits on behalf of her children, J.M. and S.M. She has asserted that the Veteran failed to make child support payments and that she experienced financial hardship during the appeal period. See Statements in Support of Claim dated December 2018 and February 2019. 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. As an initial matter, the Board notes that the current claim was filed by the appellant on behalf of her two children in January 2017. The child S.M. had already reached the age of 18 on June [REDACTED], 2015. Although S.M. would be deemed a "child" for VA purposes following her 18th birthday, as documentation confirms that she was enrolled in college at the time the claim was filed, she was no longer a minor in the custody of the appellant during the appeal period. Thus, it is she who would be potentially eligible to personally receive any apportionment awarded for this period of time, and to whom such payment would potentially be made (not to the appellant). The law requires that an appellant who files an appeal must have standing. For an appellant to have standing, that individual must demonstrate that he or she has been injured and has a "personal stake in the outcome of the controversy." Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962); Belton v. Principi, 17 Vet. App. 209, 211 (2003); Redding v. West, 13 Vet. App. 512, 514 (2000). As S.M. reached the age of majority during the appeal period (albeit still pursuing university instruction) and was presumably competent, the appellant was no longer her custodian, and any award of apportionment would be paid to S.M. for this period of time. 38 C.F.R. §§ 3.403, 3.854. Thus, the appellant does not have legal standing to receive payment of an apportionment on S.M.'s behalf beyond her 18th birthday. As such, the Board finds that the appellant is not entitled to an apportionment for S.M. at any point during the appeal period. Thus, the Board will evaluate the appellant's apportionment claim solely on behalf of the child J.M. The record reflects that J.M. was in the custody of the appellant at the time of filing of the claim. However, J.M. turned 18 on April [REDACTED], 2020 and no information has been provided regarding whether she enrolled in college to pursue further education at that time. Thus, she would not still be considered a minor for the purposes of this claim beyond her 18th birthday. See 38 C.F.R. §§ 3.57. As such, the Board will consider the appellant's entitlement to an apportionment on J.M.'s behalf prior to April [REDACTED], 2020. 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 (2019). 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). In this case, the record reflects that the Veteran is the biological father of J.M. As noted above, J.M. was in the sole custody of the appellant prior to her 18th birthday, and the Veteran does not contend otherwise. Therefore, the appellant must establish that the Veteran was not reasonably discharging his responsibility for their daughter's support. After a review of all the evidence, the Board finds that the Veteran was reasonably discharging his responsibility for J.M. The record reflects that the Veteran was previously ordered to make child support payments in the amount of $428.00 per month. See Child Support Modification Order dated June 2015. The Board notes that the Veteran owed an arrearage of $39,800.00 as of October 2020. See Payment History Reported dated October 6, 2020. However, he has submitted documentation to confirm that he was consistently making partial payments through 2017, which resumed on a regular basis in 2020. See Support Calculation Summary dated August 3, 2020. Although the payments were more sporadic between 2018 and 2019, the Board finds that, the Veteran was reasonably discharging his responsibility for the child's support by providing at least partial child support payments to the appellant on behalf of J.M. 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. The Board notes that, based on a review of the financial information of record, the appellant demonstrated a financial need, as her expenses exceeded her reported income in January 2017. 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. As discussed, 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. After a review of the evidence, the Board finds that a special apportionment of the Veteran's VA compensation benefits is not warranted. The Board acknowledges that the Veteran received an additional dependency allowance for J.M. during the appeal period. However, the record reflects that he was making consistent child support payments that ranged between $50.00 and $660.00. As the majority of these payments were higher than the monthly dependency allowance received by the Veteran, the Board finds that a special apportionment would result in undue financial hardship to him. Indeed, the Veteran has a limited monthly income and reported that he was homeless during the appeal period. Furthermore, it is reasonable to assume that the dependency allowance received by the Veteran was used to assist in making the monthly child support payments to the appellant. Thus, any additional apportionment from his VA benefits would result in undue financial hardship for him. (Continued on the next page) In sum, the Board finds the appellant has failed to establish the threshold requirements for either type of apportionment authorized by VA regulation. A general apportionment under 38 C.F.R. § 3.450 is not warranted because the Veteran was reasonably discharging his duty of support for the parties' child J.M. by making child support payments. The requirements for a special apportionment under 38 C.F.R. § 3.451 have not been met because the Veteran has demonstrated financial hardship which outweighs that reported by the appellant for the period on appeal. As a result, the claim of entitlement to apportionment of the Veteran's VA disability compensation benefits must be denied. 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.