Citation Nr: 21031744 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 19-03 152A DATE: May 24, 2021 ORDER The apportionment awarded to A.G., on behalf of the minor children A.G. and N.G., was improper, and the Veteran's appeal to terminate the apportionment is granted. FINDING OF FACT The Veteran is reasonably discharging his duty of support for the minor children A.G. and N.G., and the evidence fails to establish the minor children experience hardship due to inadequate financial support from the Veteran. CONCLUSION OF LAW The criteria for entitlement to an apportionment of the Veteran's VA disability compensation benefits have not been met and the apportionment is terminated. 38 U.S.C. § 5307 (2012); 38 C.F.R. §§ 3.450, 3.451 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2002 to December 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2017 decision by the Department of Veterans Affairs (VA) Regional Office (RO), which awarded an apportionment of the Veteran's VA compensation benefits to his former spouse for their minor children. In January 2020, the Board remanded this matter for further development regarding contested claims procedures. The appeal has now returned to the Board for final adjudication. The apportionment awarded to A.G., on behalf of the minor children A.G. and N.G., was improper, and the Veteran's appeal to terminate the apportionment is granted. According to VA law, all or part of a veteran's VA benefits may be apportioned on behalf of the veteran's children if they are not in the veteran's custody and the veteran is not reasonably discharging his or her responsibility for child support, otherwise known as general apportionment. 38 U.S.C. § 5307 (a)(2); 38 C.F.R. § 3.450 (a)(1)(ii). It is not necessary for the claimant to establish the existence of hardship to obtain a general apportionment under 38 C.F.R. § 3.450, but no apportionment will be made where the veteran is providing for dependents. 38 C.F.R. § 3.450 (c). Here, A.G. is the primary custodial parent of A.G. and N.G., the parties' minor children; therefore, the children are not in the Veteran's custody. In August 2015, A.G. filed a claim for apportionment of the Veteran's VA compensation benefits on behalf of the minor children. In July 2017, the RO awarded an apportionment of the Veteran's VA disability compensation to A.G., on behalf of the minor children, in the amount of $400.00 per month. The Veteran disagreed with the award of apportionment and reported that he had been paying child support to A.G. through a wage garnishment in the amount of $737.00 per month. See Statement of Earnings dated 2016. Indeed, he submitted documentation to confirm that he had been making consistent and complete payments to A.G. See Statement dated October 2016; Payment History dated October 2016. The Veteran acknowledged that he had previously fallen behind on payments due to inconsistent employment, but that he had substantially paid down any arrearage that had accumulated. See Notice of Disagreement dated August 2017. The Board finds that the record establishes that A.G. receives monthly child support payments on behalf of the minor children. Thus, a general apportionment is not proper in this case because the Veteran is providing financial support for the minor children. VA regulations provide for a special apportionment of VA benefits between the veteran and his or her dependents based on the facts in the individual case where hardship is shown to exist, if it does not cause undue hardship to the other persons in interest. 38 C.F.R. § 3.451. In determining the basis for a special apportionment, consideration will be given to such factors as: 1) the amount of VA benefits payable; 2) other resources and income of the veteran and those dependents in whose behalf apportionment is claimed; and 3) special needs of the veteran, his or her dependents, and the apportionment claimants. Id. Regarding a special apportionment, based on a review of the financial information of record, the Veteran's former spouse has not demonstrated financial hardship, as her reported income exceeded her monthly expenses during the appeal period. Indeed, the record reflects that the Veteran's former spouse had about $60.00 remaining each month after full consideration of her monthly expenses. See VA Form 21-0788 dated August 2015. The Board notes that the Veteran's former spouse neglected to report the $737.00 she receives in monthly child support paid by the Veteran, as verified by the documentation provided. As such, she would presumably have nearly $800.00 remaining monthly without the assistance of any apportionment award. The Board further finds, given the financial situation of the Veteran, an apportionment from his VA benefits would result in undue financial hardship for him, undermining his ability to provide for his family. Although the Veteran reported having a surplus remaining each month after consideration of expenses for himself and his family, including four other children, he further reported living paycheck to paycheck and demonstrated that any award of apportionment would result in significant financial hardship upon him. See VA Form 9 dated in February 2019. The Board acknowledges that the Veteran receives an additional dependency allowance for the minor children A.G. and N.G. However, the record reflects that he was making consistent child support payments of $737.00. As these payments are substantially 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, it is reasonable to assume that the dependency allowance received by the Veteran is used to offset the monthly child support payments made to A.G. In sum, the Board finds that A.G. 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 proper because the Veteran is reasonably discharging his duty of support for the minor children by making monthly child support payments for their care. The requirements for a special apportionment under 38 C.F.R. § 3.451 have not been met because A.G., as the primary custodian of the minor children, has not established hardship due to inadequate financial support from the Veteran. In reaching this conclusion, the Board acknowledges A.G. seeks to obtain financial support from the Veteran's monthly VA disability compensation benefits. However, it would be inconsistent with VA regulation to uphold the current apportionment of the Veteran's benefits when he is already making consistent monthly payments through alternative means. The evidence also establishes A.G. has sufficient income to avoid hardship. As a result, the award of an apportionment of the Veteran's VA disability compensation benefits was improper and his appeal to terminate the apportionment is granted. 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.