Citation Nr: 22015198 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-01 911 DATE: March 16, 2022 ORDER The award of an apportionment of Veteran's VA disability compensation benefits to his former spouse, D.C., from September 1, 2014, to December 1, 2014, was proper, and the Veteran's appeal as to the propriety of the apportionment is denied. FINDINGS OF FACT 1. The Veteran and appellee, D.C., were married, and their divorce became final on November 24, 2014. 2. The Veteran was reasonably discharging his responsibility for the support of his former spouse through the date of the divorce. 3. The appellee demonstrated that she experienced financial hardship and the apportionment in the amount of $156.36 per month from September 1, 2014, to December 1, 2014, did not result in undue hardship to the Veteran. CONCLUSION OF LAW The decision to grant an apportionment of the Veteran's VA benefits to the appellee in the amount of $156.36 per month from September 1, 2014, to December 1, 2014, was proper. 38 U.S.C. § 5307; 38 C.F.R. §§ 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 1971 to January 1974 and from July 1976 to November 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2015 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 the period between September 1, 2014, to December 1, 2014. In September 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In February 2020 and September 2020, the Board remanded the matter for compliance with contested claims procedures. The matter has been returned to the Board. 1. The propriety of the award of an apportionment of Veteran's VA disability compensation benefits to his former spouse, D.C., from September 1, 2014, to December 1, 2014 The Veteran appeals the apportionment of his VA benefits in the amount of $156.36 per month to the appellee. He asserts that the Divorce Decree set out the alimony agreed to by the parties and the court order shall not be modified. VA regulations provide for two types of apportionments. The first type is a "general" apportionment. A general apportionment may be paid under the circumstances set forth in 38 C.F.R. § 3.450. More specifically, 38 C.F.R. § 3.450(a)(1)(ii) provides that an apportionment may be paid if the Veteran's spouse is not residing with him and the Veteran is not reasonably discharging his responsibility for the spouse's support. 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 in 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 apportionment. For the reasons set forth below, the Board finds that, for the relevant period on appeal, the appellee has shown she was the Veteran's estranged spouse, has demonstrated financial hardship, and the Veteran did not demonstrate that a grant of the apportionment caused him undue financial hardship. Therefore, a special apportionment of the Veteran's VA benefits to the appellee in the amount of $156.36 per month was proper. In support of her apportionment claim, the appellee provided supporting documents, to include an August 2014 VA Form 21-0788 (Information Regarding Apportionment of Beneficiary's Award). She reported $337.67 in monthly income from Social Security. The only expense she reported was her house payment, but noted the Veteran covered that expense. She did not report expenses for food, utilities, clothing, or medical expenses. Accounting for the Veteran's contribution of $587.00 and the SSA income of $337.67, this would bring the appellee's total monthly income to $924.67, or $11,096.04 annually. This amount is below the poverty line for a single individual in 2014. See 2014 U.S. Census Bureau Poverty Thresholds (https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html). Any support the Veteran was providing was not enough to support the appellee's expenses. Based on the foregoing, the Board finds that the appellee has demonstrated financial hardship. The Veteran has never submitted a VA Form 21-0788 as requested that would provide evidence of his monthly income and expenses. In May 2015 the Veteran did list some monthly expenses in response to a debt notification that was created by the months of dependency benefits he received following the divorce. The monthly expenses totaled approximately $800.00, and the Veteran noted several larger expenses that were not reoccurring monthly expenses. While he reported medical expenses, he did not provide expense amounts for food, utilities, or clothing. The Veteran noted that he received a total rating from the VA, but it was not clear if he had additional income. His award during the appeal period totaled $3,017.60 and included $159.36 for his dependent spouse. At the September 2019 Board hearing, the Veteran's representative argued that the Veteran never received any notification of the pending apportionment claim prior to the apportionment grant, that the notification was sent to a house he was no longer living at, and the appellee had probably destroyed the paperwork; therefore, he was unable to respond. The Board notes that the Veteran was notified of the apportionment claim in May 2015 at the same address he currently resides. A list of his monthly income and expenses was requested. The Veteran's failure to provide the requested information has frustrated VA's efforts to gain insight into his financial situation, which essentially precludes a finding that the apportionment would result in undue hardship to him since this amount falls lower than the range of a reasonable apportionment amount as outlined in 38 C.F.R. § 3.451. Further, as the apportionment amount awarded to the appellee ($156.36) is less than the amount of the dependency allowance the Veteran received for his former spouse ($159.36) the apportionment amount cannot be found to cause the Veteran undue hardship. The Board notes the Veteran cannot prevail on a claim of hardship when he is receiving additional benefits for his dependent and the apportioned amount is no more than the additional benefits. See Hall v. Brown, 5 Vet. App. 294, 295 (1993). Finally, the Veteran essentially argues that the apportionment is a form of alimony and the matter of alimony was set out in the Divorce Decree. The Court of Appeals for Veterans Claims (Court) addressed a similar argument put forth by the Veteran and held agreements in state domestic relations proceedings play no role in VA apportionment decisions. See Batcher v. Wilkie, No. 16-0638 (Apr. 26, 2019). The Court acknowledged these agreements often purport to preclude a spouse from seeking an apportionment of a Veteran's VA disability compensation benefits, but it clearly explained the Veteran's remedy in this situation lies with the state court and not with VA. In accordance with the holding in Batcher, the Board finds the parties' November 2014 Divorce Decree is insufficient to prohibit the apportionment granted on behalf of the appellee. The Board notes that the apportionment was based on the financial need of the appellee for the time period prior to their divorce and provides the monetary support the appellee needed for the time period prior to the parties' divorce. The Board further finds the AOJ properly terminated the apportionment, effective December 1, 2014, which would have been the first payment date after the parties' divorce. See 38 C.F.R. § 3.500(d). Accordingly, the Veteran's appeal of the propriety of the award of the apportionment is denied. Based on the foregoing, the Board finds the appellee has demonstrated financial hardship, and the Veteran has not demonstrated that the grant of an apportionment of his VA disability benefits in the amount of $156.36 per month has caused him undue financial hardship. Therefore, the appellee meets the requirements for a special apportionment. As such, the Veteran's appeal is denied. C. TRUEBA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gastoukian, Kelly 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.