Citation Nr: 21042146 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 11-25 892 DATE: July 12, 2021 ORDER The appeal of the propriety of the $300.00 per month apportionment granted to A.S. on behalf of the Veteran's dependent child, J.H., is denied. FINDINGS OF FACT 1. The Veteran's daughter, J.H., resides with A.S. 2. A.S. has shown a financial hardship, as her expenses exceed her income. 3. An apportionment in the amount of $300.00 would not cause the Veteran a financial hardship as his income exceeds his expenses. CONCLUSION OF LAW The criteria for the claim as to the propriety of 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, 3.452, 3.453, 3.458, 3.503. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1970 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 special apportionment decision of the Department of Veterans Affairs (VA) Regional Office (RO) which granted A.S. an apportionment of the Veteran's VA benefits for the benefit of the minor children J.H. and J.H. In December 2020, the Veteran appeared and testified at a virtual hearing before the undersigned Veterans Law Judge. This matter was previously remanded by the Board in September 2018 for further development. 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). At the outset, the Board notes that Veteran's former spouse requested and was granted an apportionment for the minor children J.H. and J.H. The Veteran appealed that award. As explained below, the Board finds that J.H. lives with the Veteran while J.H. has resided with her mother. As only one child currently resides with the Veteran's former spouse, the Board has captioned the claim accordingly. Further, despite numerous requests for additional information, neither the Veteran nor A.S. have responded to VA's request for updated financial information or the living situation of the children. The Board finds that further remand to obtain this information would be fruitless and will proceed to a decision with the evidence of record. The appeal of the propriety of the $300.00 per month apportionment granted to A.S. on behalf of the Veteran's dependent child, J.H., The Veteran contends that the award of an apportionment to the appellee, A.S., for the benefit of the minor children, J.H. and J.H., was not proper. He asserts that the children do not reside with A.S. and thus an apportionment to her is not appropriate. 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 is the Veteran. A.S. is the mother of the Veteran's two minor children J.H. and J.H. The Veteran has stated that neither of the children have resided with A.S. during the pendency of the appeal. At his December 2020 Board hearing, the Veteran testified that for the entirety of the appeal period his son, J.H., had either resided with his sister or himself, but that at no time had he lived with A.S. Regarding his daughter, J.H., the Veteran testified that from 2009 until approximately 2016, she resided with her mother, A.S. From 2016 until 2018, J.H. resided with an aunt, and it appears that A.S. resided there as well. From 2018 to the time of the hearing, J.H. resided with her mother, with the exception of several months where she was looking for an apartment. Based on the evidence of record, the Board finds that for the entirety of the appeal period, the Veteran's son, J.H., has not resided with A.S. However, during the same period, the Veteran's daughter did reside with A.S. Thus, the question for the Board is whether an apportionment to A.S. for the benefit of J.H. is appropriate. The Board reiterates that neither party has responded to requests for updated financial information. When the Veteran last provided evidence of his monthly income and expenses in 2008, he reported income of approximately $5,500.00 per month and expenses of approximately $4,800.00 per month. Thus, the Veteran had a surplus of $700.00 per month. When A.S. last provided evidence of her monthly expense in 2014, she reported income of $770.00 per month and expenses of $1,643.00 per month. Thus, she had a deficit of $873 per month. Given the reported income and expenses of the Veteran, an apportionment from his VA benefits would not result in undue financial hardship for him, seriously undermining his ability to afford the basic necessities of life. Further, given the reported income and expenses of A.S., a demonstrated financial hardship exists for her. 38 C.F.R. § 3.451. Further, the Board finds that the current $300.00 per month apportionment, although originally granted for both J.H. and J.H., should be maintained even though the Board has removed the Veteran's son, J.H. from the apportionment award. In light of the reported income and expenses of the parties, and for the reasons explained above, the Board has determined that an apportionment in the amount of $300.00 per month is not unreasonable. As a result, the claim of entitlement as to the propriety of an award of an apportionment of the Veteran's VA disability compensation benefits to A.S. for the benefit of J.H. must be denied. L. CHU 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.