Citation Nr: 21040083 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-35 225 DATE: July 2, 2021 ORDER Entitlement to an apportionment of the Veteran's VA compensation benefits is denied. FINDINGS OF FACT 1. A.A., A.A., and A.A., are the Veteran's biological children. 2. One of the Veteran's children, A.A. turned 18 on September [REDACTED], 2016, but was in the custody of the appellant prior to that time. 3. The appellant has had primary physical custody of the parties' two minor children during the appeal period. 4.. The Veteran has reasonably discharged his responsibility for his children during the period on appeal. 5. The appellant has not demonstrated financial hardship. 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 October 1990 to April 1993. The appellant is the Veteran's spouse and mother of the parties' children. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2016 decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020 and September 2020, the Board remanded this matter for further development regarding contested claims procedures. Both parties have indicated that they have no further evidence to submit and wish for the Board to proceed with adjudication of this appeal. As an initial matter, the Board notes that the Veteran submitted a VA Form 9 in March 2020 in opposition to the appellant's claim for an apportionment. As no apportionment of his VA benefits has been awarded in the decision herein, the Veteran's March 2020 Form 9 is moot. Entitlement to an apportionment of the Veteran's VA compensation benefits is denied. The appellant in this case, the mother of the Veteran's three children, filed a claim for an apportionment of the Veteran's VA compensation benefits in June 2014. She has reported that the Veteran has not provided sufficient financial support for their children. See Notice of Disagreement dated March 2016. Since the date of claim, one of the children, A.A. turned 18 on September [REDACTED], 2016. No evidence has been submitted regarding the date of her high school graduation or whether she chose to pursue further education upon her graduation from high school. Thus, she was no longer a minor child for whom an apportionment could be made as of the date of her 18th birthday. See 38 U.S.C. § 101 (4)(A); 38 C.F.R. § 3.57, 3.667. 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 (2020). As no information has been submitted regarding the status of A.A.'s education, the Board will consider an award of apportionment on her behalf prior to the date of her 18th birthday, September [REDACTED], 2016. 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 (2018). 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). In this case, the record reflects that the Veteran is the biological father of the parties' children, who have been in the custody of the appellant during the appeal period, including A.A. until she turned 18 on September [REDACTED], 2016. Indeed, the Veteran has not claimed that any of the children have been in his care during the appeal period. Therefore, the appellant must establish that the Veteran has not reasonably discharged his responsibility for his children's support. After a review of all the evidence, the Board finds that the Veteran has reasonably discharged his responsibility for the children throughout the appeal period. Indeed, the record reflects that the minor children each receive $423.00 per month from the Veteran's Social Security Administration (SSA) benefits. See SSA Letter dated September 2016. Additionally, A.A. received $273.00 per month prior to her 18th birthday. See VA Form 21-0788 dated June 2014. The record does not indicate that these payments were not made to the children. Based on the foregoing, the Board finds that the Veteran has reasonably discharged his responsibility for his children's support by providing SSA benefits to the appellant on behalf of the children. 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. In this regard, the Board finds that the appellant has not demonstrated financial hardship. Indeed, throughout the appeal period, she reported a monthly surplus of between $200.00 and $2,000.00, after consideration of the monthly expenses required for the care of the children. Notably, the appellant has not indicated that she has a mortgage or a monthly housing payment, and has reported having about $1,000.00 in a bank account in June 2014 and as recently as October 2020. The Board also notes that the appellant reported costs related to participation in extracurricular activities, as well as international school trips that are not considered basic monthly living expenses. In light of the above, the record reflects that the appellant is able to cover her expenses each month while caring for the Veteran's children and consistently has a financial surplus. Based on the foregoing, the Board finds that the appellant has not demonstrated financial hardship for the period on appeal. 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. Although the Veteran reported having a slight financial surplus remaining each month after consideration of expenses for himself and his mother, he demonstrated that any award of apportionment would result in hardship upon him. The Board acknowledges that the Veteran received an additional dependency allowance for the children throughout a portion of the appeal period. However, the SSA payments awarded directly to the appellant are substantially higher than the monthly dependency allowance received by the Veteran prior to September 2016 for A.A., and prior to April 2021 for the minor children (as the dependency benefits were terminated at that time). As such, 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 was used to offset the deduction of SSA benefits paid out to the appellant. In sum, the Board finds that 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 proper because the Veteran is reasonably discharging his duty of support for the parties' children by providing SSA benefits to the appellant on their behalf. The requirements for a special apportionment under 38 C.F.R. § 3.451 have not been met because the appellant, as the primary custodian, has not established hardship due to inadequate financial support from the Veteran. In reaching this conclusion, the Board acknowledges that the appellant seeks to obtain financial support from the Veteran's monthly VA disability compensation benefits. However, it would be inconsistent with VA regulation to award an apportionment of the Veteran's benefits when he is already making consistent monthly payments through alternative means. The evidence also establishes that the appellant has sufficient income to avoid hardship. As a result, an apportionment of the Veteran's monthly VA compensation benefits is 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.