Citation Nr: 22013369 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 19-00 184A DATE: March 9, 2022 ORDER The award of a special apportionment of the Veteran's VA compensation benefits, in the amount of $200.00 per month, to S.C. on behalf of the minor child, R.C., from February 2016 to June 2020, was proper, and the Veteran's appeal to terminate the apportionment during this period is denied. FINDINGS OF FACT 1. R.C. is the parties' (Veteran and S.C.) biological child. 2. During the appeal period, S.C. was the primary custodian of the parties' minor child, R.C. 3. During the appeal period, S.C. demonstrated financial hardship as her expenses generally exceed her income during the appeal period. 4. During the appeal period, the special apportionment of the Veteran's VA disability compensation benefits, in the amount of $200.00 per month, did not create an undue financial hardship to the Veteran. CONCLUSION OF LAW The award of a special apportionment of the Veteran's VA compensation benefits, in the amount of $200.00 per month, to S.C. for the benefit of the minor child, R.C., from February 2016 to June 2020, was proper. 38 U.S.C. § 5307; 38 C.F.R. § 3.450, 3.451, 3.452, 3.458. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from August 1999 to October 1999 and from December 2000 to November 2005. In this matter, S.C. is the mother and primary custodian of R.C., during the appeal period at issue. Additionally, as discussed below, the record reflects that R.C. turned 18 during the pendency of the claim. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2017 apportionment decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2021, the Veteran and S.C. presented testimony at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. As a final preliminary matter, in this case, the record reflects the rules regarding simultaneously contested claims have not been followed. Specifically, S.C. was not provided with a copy of the January 2019 Statement of the Case (SOC), content of the Veteran's January 2019 VA Form 9, Appeal to the Board of Veterans' Appeals, or the February 2020 Board notification letter. 38 C.F.R. §§ 19.100-02, 20.500-04. However, as S.C. is the prevailing party in this matter, the Board may proceed on the merits of this appeal without prejudice to either party. The award of a special apportionment of the Veteran's VA compensation benefits, in the amount of $200.00 per month, to S.C. on behalf of the minor child, R.C., from February 2016 to June 2020, was proper, and the Veteran's appeal to terminate the apportionment during this period is denied. The January 2017 rating decision granted an apportionment of the Veteran's VA compensation benefits, in the amount of $200.00 per month, to S.C. for the benefit of the minor child, R.C., effective February 1, 2016, and also noted apportionment would terminate in June 2020, when R.C. turned 18. The record reflects the apportionment was discontinued in June 2020, as acknowledged by each party in September 2021 testimony. Thus, the appeal period, during which apportionment was granted, is from February 2016 to June 2020. Further, although the January 2017 notice letter, as to the apportionment decision, provided to S.C., explicitly documented the type of apportionment granted was a "special" apportionment, as the January 2019 SOC discussed the claim based on both "general" and "special" apportionments, the Board will also address the appeal broadly. In this regard, 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 S.C. 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' child, R.C. Specifically, in VA-Forms 21-686c, Declaration of Status of Dependents, dated in December 2009, August 2015, and November 2018, the Veteran reported R.C. was his child. Further, the Veteran has not otherwise contended R.C. is not his biological child. Additionally, in his January 2017 VA Form 21-0958, Notice of Disagreement (NOD), the Veteran reported, in part, that based on a court proceeding, he and S.C. had joint physical custody of the kids and that he had a child that lived with him. However, notably, the Veteran did not report that R.C. lived with him. In a January 2019 VA Form 9, the Veteran reported, in part, that he had joint custody of the parties' children, and that he was to have them half the time, and that the "paperwork is in the original packet." However, there is no joint custody agreement from the parties currently of record. Further, during the September 2021 hearing, S.C. testified that, in order to correct payments for R.C. from the Social Security Administration, she had to write a statement to the Social Security Administration explaining that R.C. lived with her for the majority of the time. During the September 2021 hearing, the Veteran did not dispute S.C.'s testimony that R.C. primarily resided with her. Thus, the Board finds, during the appeal period at issue, the evidence reflects S.C. was the primary custodian of R.C. Therefore, in order to be awarded a general apportionment, S.C. must establish that the Veteran did not reasonably discharge his responsibility for his child's support during the period at issue. However, after a review of all the evidence, the Board finds the evidence tends to reflect that the Veteran reasonably discharged his responsibility for R.C. during the period at issue. Specifically, in her January 2016 VA Form 21-0788, Information Regarding Apportionment of Beneficiary's Award, S.C. reported she received $71.00 per month from the Veteran on behalf of R.C. In a January 2016 statement, S.C. clarified that the Social Security Administration believed that the Veteran was receiving $71.00 on behalf of R.C., which was affecting R.C.'s check that she received. In another January 2016 statement, S.C. appeared to report, in part, that the Veteran received income from VA and the Social Security Administration on behalf of R.C., and that she was told the $71.00 per month the Veteran received was for his children when they visited and they were not going to send her the check. In a January 2017 statement, S.C. reported the Veteran agreed to forward the equivalent funds he received, which had been deducted from their son's Social Security disability payment each month, and in light of this, she would like to stop the claim. Thereafter, in February 2017 correspondence, VA notified S.C. that apportionment would be discontinued based on her statement. In a March 2017 statement, S.C. reported she did not want her son's benefits to be discontinued. Most recently, during the September 2021 hearing, S.C. testified that, initially, the Veteran was receiving a little over $200.00 for all three kids from the Social Security Administration and that he would send $75.00 to her. However, S.C. further testified that the Social Security Administration then found that the Veteran was receiving a disability payment for R.C., because R.C. resided with the Veteran, and she had to stop receiving the $75.00 per month from the Veteran. She then testified that she then had to write a statement to the Social Security Administration explaining that R.C. did live with her for the majority of the time. She also testified that the Social Security Administration was going to recoup the $200.00 per month already paid and she had to file the paperwork reflecting she was not receiving it or she would be financially obligated to pay back all of the money that the Social Security Administration paid to her for R.C. She also testified that shortly thereafter, the Social Security Administration began paying R.C. directly and not through the Veteran. She testified that it was her understanding that the Social Security Administration ran R.C.'s social security number, which reflected the Veteran was receiving money for R.C., and this had to be taken care of, or she was responsible for paying back for the money the Social Security Administration had paid her. In his January 2017 NOD, the Veteran reported, in part, that S.C. received Social Security benefits on his behalf for his children, and that he had been sending $75.00 a month to S.C. to cover her loss of $75.00 from Social Security as they previously agreed upon. In his January 2019 VA Form 9, and in September 2021 testimony, the Veteran again reported S.C. received money from Social Security on his behalf. The record is unclear as to whether S.C. received from the Social Security Administration, for R.C., on behalf of himself, or on behalf of the Veteran. Nonetheless, as S.C. herself testified in September 2021 that the Veteran sent her the $75.00 for at least a portion of the appeal period, the Board finds that the evidence tends to reflect the Veteran reasonably discharged his responsibility for R.C.'s support during the appeal period. Thus, the evidence tends to reflect a general apportionment is not warranted, nor does the record reflect a general apportionment has been granted. Instead, the Board must now determine whether the special apportionment, as already awarded, was proper. Turning to the special apportionment already awarded to S.C., for the benefit of the minor child, R.C., during the appeal period, the Board finds that S.C. has demonstrated financial hardship. Specifically, in January 2016, she submitted a VA Form 21-0788, which indicated that her expenses exceeded her income, R.C's income, and two other children's income, even when all three incomes were combined. Based on the foregoing, the Board finds that S.C. has demonstrated financial hardship as her reported expenses exceeded her income. 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 S.C. and the Veteran, based on their reported income and expenses. In this regard, based on a review of the record, the Board is unable to find that the special apportionment of the Veteran's VA compensation benefits, in the amount of $200.00 per month, resulted in an undue financial hardship for him. The Veteran has not provided a VA Form 21-0788 or any financial information, although he was requested to do in September 2016 correspondence. In this regard, in a January 2019 VA Form 9, as indicated above, the Veteran referenced that "paperwork is in the original packet." Similarly, in September 2021 testimony, the Veteran reported that after VA granted the apportionment of $200.00 and he disagreed, at that point, he submitted his financial information and documentation from the Social Security Administration that he was actually contributing to R.C.'s support. However, the Veteran's January 2017 NOD contains a coversheet that explicitly stated the submission consisted of four pages. In this regard, the Veteran's January 2017 submission consists of a one page coversheet, two pages of the NOD itself, and one page which is a duplicate copy of the apportionment notice letter sent to the Veteran. The record also reflects the Veteran again resubmitted these four pages in February 2017. However, the record does not reflect the Veteran submitted a VA Form 21-0788 or provided any income and expenses information. Further, the Veteran was notified, at the time of the January 2019 SOC, that VA had not received the requested information. Specifically, the January 2019 SOC, which was issued to the Veteran, documented, in part, that on September 14, 2016, VA requested the Veteran provide his total income and expenses per month, and as of this date, VA had not received the requested evidence. However, although the Veteran has not provided his financial information, the Board finds the award of $200.00 monthly special apportionment to R.C., effective from February 1, 2016, as already awarded, did not cause the Veteran undue financial hardship. Specifically, during the appeal period at issue, the record reflects the Veteran was paid at the 90 percent rate, was awarded a total disability rating due to individual employability, and was also paid for several dependents, including R.C. In this regard, the apportionment of $200.00 each month, was not unreasonable as it constituted less than 20 percent of the Veteran's benefits. See 38 C.F.R. § 3.451. Further, the record reflects the Veteran received a dependency allowance, for an additional child under age 18, on behalf of R.C., throughout the appeal period at issue, and which is properly owed to R.C. Accordingly, based upon a review of the evidence of record, it cannot be said that the apportionment presented an undue hardship to the Veteran. Accordingly, after a review of all the evidence, the Board finds that the special apportionment of the Veteran's VA disability compensation benefits, in the amount of $200.00 per month, to S.C. on behalf of the minor child, R.C., from February 2016 to June 2020, was proper. As discussed, the record reflects that S.C. has demonstrated financial hardship, and the Veteran has not demonstrated the apportionment of his VA disability compensation benefits caused him undue financial hardship. As such, the Board finds that a special apportionment of the Veteran's VA disability compensation benefits to S.C., in the amount of $200.00 per month, from February 2016 to June 2020, was proper and the Veteran's appeal is denied. JENNIFER HWA 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.