Citation Nr: 22047303 Decision Date: 08/19/22 Archive Date: 08/19/22 DOCKET NO. 18-42 022 DATE: August 19, 2022 ORDER Entitlement to an apportionment of the Veteran's VA disability compensation benefits on behalf of his dependent children, B.C. and C.C., is denied. FINDING OF FACT The Veteran reasonably discharged his duty of support for the dependent children and the evidence fails to establish they 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 disability compensation benefits have not been met. 38 U.S.C. § 5307; 38 C.F.R. §§ 3.450, 3.451. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1993 to April 2004 and from March 2008 to April 2009. The appellant is B.C.'s and C.C.'s mother and custodial parent. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 apportionment decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in June 2019 and August 2021. It has been returned to the Board for adjudication. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the appellant's claim of entitlement to an apportionment of the Veteran's VA disability compensation benefits. 1. Entitlement to an apportionment of the Veteran's VA disability compensation benefits on behalf of his dependent children, B.C. and C.C. The appellant seeks an apportionment of the Veteran's VA compensation benefits on behalf of their children, B.C. and C.C. She previously asserted that the Veteran was not providing financial support. 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). The record establishes that the Veteran was making relatively consistent and substantial monthly child support payments that began in the amount of approximately $700.00 in 2016 to approximately $1,400.00 per month in 2019. See California Child Support Payment History Report dated December 26, 2019. Thus, the Board finds a general apportionment is not warranted because the Veteran made consistent and reasonable child support payments for the care and welfare of the children throughout the appeal period. 38 U.S.C. § 5307(a)(2); 38 C.F.R. § 3.450(a)(1)(ii). Regarding a special apportionment, based on a review of the financial information of record, the appellant has not demonstrated a financial need, as her income exceeds her reported expenses. She has stated expenses of $4,550.00 per month and income of $6,500.00 per month. See January 2016 VA Form 21-0788, Information Regarding Apportionment of Beneficiary's Award. This does not provide a basis to grant this claim as her monthly income exceed her expenses. The Board notes that the appellant has provided past due notices for the August 2016 and September 2016 time frame that indicate a financial need; however, when the VA tried to develop further income and expense information the appellant declined to provide the information. In sum, the Board finds 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 warranted because the Veteran is reasonably discharging his duty of support for the appellant by making monthly child support payments. The requirements for a special apportionment under 38 C.F.R. § 3.451 have not been met because the appellant has not established hardship due to inadequate financial support from the Veteran. In reaching this conclusion, the Board acknowledges the appellant seeks to have additional support payments taken out of the Veteran's monthly VA disability compensation benefits. However, it would be inconsistent with VA regulation to grant an apportionment of the Veteran's benefits when he is already making consistent payments. The evidence otherwise establishes the appellant has sufficient income to avoid hardship. As a result, the claim of entitlement to apportionment of the Veteran's VA disability compensation benefits must be denied. MARJORIE A. AUER 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.