Citation Nr: 22071908 Decision Date: 12/29/22 Archive Date: 12/29/22 DOCKET NO. 16-41 041 DATE: December 29, 2022 ORDER Entitlement to an apportionment of the Veteran's Department of Veterans Affairs (VA) compensation benefits, to the appellant, on behalf of the Veteran's minor child, A.R., is denied. FINDING OF FACT Throughout the period on appeal, the Veteran reasonably discharged his duty of support for his minor child, A.R., and the evidence fails to establish A.R. experienced hardship due to inadequate financial support from the Veteran. CONCLUSION OF LAW The criteria for entitlement to an apportionment of the Veteran's VA compensation have not been met. 38 U.S.C. § 5307; 38 C.F.R. § 3.450, 3.451, 3.452, 3.458. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2002 to October 2009. The record reflects A.R. is the parties' (the appellant and the Veteran) minor child. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a April 2016 apportionment decision by a Regional Office of VA, which denied apportionment of the Veteran's VA compensation benefits to the appellant, on behalf of A.R. In the appellant's August 2018 VA Form 9, Appeal to Board of Veterans' Appeals as well as in other statements, she requested a hearing before a Veterans Law Judge. As relevant here, most recently, VA correspondence, dated July 19, 2022, notified both the appellant, and the Veteran, that a Board hearing had been scheduled for October 26, 2022. However, neither the appellant nor the Veteran reported for the scheduled hearing and no good cause was shown for either party's absence; therefore, the hearing request is deemed withdrawn. 38 U.S.C. § 20.704(d). As a final initial matter, the Board recognizes that there has not been substantial compliance with certain rules regarding simultaneously contested claims. 38 C.F.R. §§ 19.100-02, 20.500-04. Specifically, a review of the record does not reflect the Veteran received the content to the appellant's August 2018 VA Form 9. However, the Board finds this deficiency does not result in prejudice to the Veteran because, as the appellant's claim for apportionment is denied herein, he is considered the prevailing party in this matter. 1. Entitlement to an apportionment of the Veteran's VA compensation benefits to the appellant, on behalf of the Veteran's minor child, A.R. The appellant seeks an apportionment of the Veteran's VA compensation benefits, on behalf of the parties' minor child, A.R. Specifically, in a May 2018 notice of disagreement, the appellant argued the Veteran was collecting money for A.R. but did not buy her school supplies or shoes, and did not see her, more specifically that he had not followed through with the court order regarding visitation. In an August 2018 VA Form 9, the appellant argued the Veteran had not been involved in A.R.'s life for two years and the money the Veteran received from VA was used on himself, and that A.R. never received the money provided on her behalf. She also argued the Veteran did not chip in for clothing or school supplies for A.R., or pay for health insurance for A.R. 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. 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; 38 C.F.R. §§ 3.450, 3.452. 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. 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. 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). 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). Here, in an August 2014 Report of General Information, the appellant reported she was A.R.'s mother and that she had full custody of A.R. The record also reflects the Veteran is A.R.'s biological father. In this regard, the Veteran claimed A.R. as a biological dependent child in VA Forms 21-686 Declaration of Status of Dependents, dated in January 2011 and April 2016. Also, a February 2015 Income Withholding for Support, reflects the Veteran's wages were garnished to provide child support on behalf of A.R. Additionally, a March 2016 child support account statement reflected Veteran, as the noncustodial party, was to pay child support to the appellant, as the custodial party. Further, the Veteran had not disputed A.R. is his biological child or that A.R. was in the custody of the appellant throughout the appeal period. Accordingly, the Board finds the appellant's assertions regarding these issues to be persuasive. Therefore, in order to be awarded a general apportionment, the appellant must establish that the Veteran has not reasonably discharged his responsibility A.R.'s support. In this regard, in her January 2016 VA Forms 21-0788, Information Regarding Apportionment of Beneficiary's Award, the appellant reported the Veteran was not providing any support for A.R. In a July 2016 Report of General Information, the appellant reported the Veteran had only been making sporadic child support payments. Also, in a September 2016 statement, H.B., reported that she had lived with the appellant and A.R. for two years, and she had never witnessed the Veteran supporting A.R., specifically that he had not bought clothes or any other items for her. Here, it is within H.B.'s realm of personal knowledge as to her observations; however, there is no indication that she had any knowledge regarding any child support payments made directly from the Veteran to the appellant based on garnishment of his wages. See Layno v. Brown, 6 Vet. App. 465 (1994). Thus, the Board does not find H.B.'s statement to be probative in this regard. Further, in an April 2016 statement, the Veteran reported he had been making child support payments to A.R. from his wages, specifically he was proving $40.00 each week in child support. Further, the Veteran submitted earnings statements dated in March 2016 and April 2016 which demonstrated he was paying a child support garnishment, in part, of $40.00 per week. Additionally, a March 2016 child support account statement reflected Veteran, paid child support to the appellant, in the amount of $40.00 per week. Also, a February 2015 Income Withholding for Support, reflects the Veteran's wages were garnished, in the amount of $67.00 per week, to provide child support on behalf of A.R. After a review of all the evidence, the Board finds the evidence persuasively reflects the Veteran has reasonably discharged his responsibility for A.R. throughout the appeal period. Indeed, the Veteran provided probative and objective documentation of child support payments he has made on behalf of A.R. The appellant has not provided any documentation regarding a lack of child support payments or documentation as to any arrears. In this regard, the July 2016 Report of General Information, as discussed above, which documented the appellant reported the Veteran had only been making sporadic child support payments, also documented that the appellant was advised that she could submit any evidence documenting her contention as to the Veteran's sporadic child support payments. Further, a VA notice letter, dated December 30, 2015, sent to the appellant in regard to her claim for an apportionment, notified her, in part, that she should provide any evidence of child support, alimony, or maintenance payments being made, and also, to furnish court records, canceled checks or money orders showing payments made in the last 12 months. However, she has not submitted any probative evidence to support her contention regarding a lack of child support payments from the Veteran. Thus, the Board finds the evidence persuasively reflects Veteran has reasonably discharged his responsibility for A.R. throughout the appeal period. Having determined that the appellant is not entitled to a general apportionment on behalf A.R., the Board must now determine whether entitlement to a special apportionment is warranted. However, the Board finds a special apportionment is not warranted. Specifically, the appellant has not demonstrated financial hardship. In this regard, in a January 2016 VA Form 21-0788, the appellant reported income of $452.00 per month of Social Security payments but she did not provide any further income or expense information. In another January 2016 VA Form 21-0788, the appellant reported $200.00 per month of school expenses but did not provide any further income or expense information. She also did not provide any other financial information. Thus, even with comparison of limited income and expenses, reported by the appellant on the two January 2016 VA Forms 21-0788, such reflects she had a surplus of $252.00 per month. Thus, the evidence persuasively reflects the appellant has not demonstrated financial hardship throughout the appeal period. The Board also recognizes, as discussed above, the appellant has argued the Veteran collected money for A.R. but that he did not buy A.R. school supplies or shoes, or provide her with health insurance. However, to the extent the appellant argues A.R. is entitled to a dependency allowance for an additional child under age 18, a general or special apportionment is not granted based on the fact that a veteran receives a dependency allowance. Rather, it is a factor for consideration in an apportionment claim. Receipt of a dependency allowance does not, in and of itself, entitle a claimant to an automatic award of this amount. Instead, the specific requirements for the type of apportionment at issue, here a general apportionment or a special apportionment, must be met. In sum, the Board finds that the appellant has failed to establish the 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 evidence persuasively reflects Veteran has reasonably discharged his responsibility for A.R. throughout the appeal period. The requirements for a special apportionment under 38 C.F.R. § 3.451 have not been met because the evidence persuasively reflects the appellant has not demonstrated financial hardship throughout the appeal period. As a result, an apportionment of the Veteran's VA compensation benefits is not warranted, and the appellant's appeal must be denied. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.