Citation Nr: A25106950 Decision Date: 12/11/25 Archive Date: 12/11/25 DOCKET NO. 240815-469773 DATE: December 11, 2025 ISSUE Entitlement to an apportionment of the Veteran's VA disability compensation benefits for the appellant and the Veteran's biological children C.E., N.E., D.E., and R.E. REMANDED Entitlement to an apportionment of the Veteran's VA disability compensation benefits for the appellant and the Veteran's biological children, C.E., N.E., D.E., and R.E., is remanded. REASONS FOR REMAND The Veteran served on active duty from April 2007 to July 2007 during the Gulf War Era. The appellant is the Veteran's spouse, C.E., N.E., D.E., and R.E. are their biological children. This matter comes before the Board from a June 27, 2024, apportionment decision which denied an apportionment of the Veteran's VA disability compensation benefits to the appellant and C.E., N.E., D.E., and R.E. The RO found that the Veteran had full custody of the minor children and that he provided support. The RO also found that the appellant reported expenses that were grossly inflated, therefore no financial need was shown, and that a divorce was pending. The appellant filed a timely VA Form 10182 on August 15, 2024, and requested the Evidence Submission docket. As such, under the Appeals Modernization Act (AMA) the Board's consideration of the evidence may be limited to the evidence of record at the time of the RO's apportionment decision on appeal and evidence submitted with the VA Form 10182 and for 90 days thereafter, through November 15, 2024. 38 C.F.R. § 20.301. As an initial matter, the record reflects that the parties were provided with Board docketing letters on September 10, 2024. The Veteran was provided with a redacted copy of the appellant's VA Form 10182 on December 16, 2024. Additionally, AMA notification letters were sent to both parties on December 16, 2024, and March 17, 2025. As such, the Board finds that the contested claims procedural requirements were met. Entitlement to an apportionment of the Veteran's VA disability compensation benefits for the appellant, C.E., N.E., D.E., and R.E., is remanded. The appellant contends that she and C.E., N.E., D.E., and R.E., are entitled to an apportionment of the Veteran's VA disability compensation benefits. In support of her contention, she stated that she and the Veteran were still married. She further stated that the state court granted full custody of the children to the Veteran due to her not having her own home due to financial hardship. She also reported that due to a medical diagnosis of Atrial Fibrillation (AFib), she had some limitations of activities. The Board acknowledges the appellant's contentions, however, as will be explained in further detail below, the benefit of the doubt cannot be applied in simultaneously contested claims. The Board finds that the evidence of record lacks objective documentation of the appellant's financial status. Further, clarification of whether the parties resided together during the appeal period is needed. As such, the appeal must be remanded for further development. 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 a veteran's VA compensation benefits may be apportioned if a veteran is not residing with his or her spouse or children, and a 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 a 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 a special apportionment, consideration is to be given to such factors as the amount of VA benefits payable, other income and resources of a veteran and those dependents on whose behalf the apportionment is claimed, and the special needs of a 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 a 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 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 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). In the present case, the record shows that the Veteran petitioned the appellant for a divorce in state court in May 2023, the basis of the petition for divorce was separation for one year. The appellant submitted a claim for an apportionment for herself and their four children that same month, stating that the Veteran left the household on January 18, 2023. The appellant reported monthly expenses of $10,215.00 and net income after monthly expenses of -$10,251.00. On May 16, 2024, the Veteran reported that he was granted full primary custody of C.E., N.E., D.E., and R.E. due to the appellant being homeless. On May 17, 2024, the Veteran submitted screenshots of bank deposits of funds he deposited for C.E., N.E., D.E., and R.E. On June 27, 2024, the RO issued an apportionment decision which denied an apportionment of the Veteran's VA disability compensation benefits to the appellant and C.E., N.E., D.E., and R.E. The RO found that the Veteran had full custody of the minor children and that he provided support. The RO also found that the appellant reported expenses that were grossly inflated, therefore no financial need was shown, and that a divorce was pending. On September 27, 2023, the state court dismissed the parties' divorce case, the state court found that the Veteran and the appellant had not resided apart for one year. On October 24, 2024, VA received a copy of state court documents dated August 7, 2024, showing that the Veteran was granted custody of C.E., N.E., D.E., and R.E. due to the appellant losing her home. The state court document reflected the appellant's assertion that she was living with her grandmother due to financial need. As stated above, the benefit-of-the-doubt 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). The Board finds that the September 2023 state court dismissal of the parties' divorce case based on the parties not having resided apart for one year conflicts with evidence previously submitted by the parties. The Board notes that the record begs the question of whether the parties resided apart during the appeal period and did they continue to reside apart? Because the divorce case was dismissed by the state court prior to one year following the May 2023 petition for divorce which was based upon the parties residing apart for one year, clarification is needed. As the Board is unable to determine the threshold matter of residence, the record is not ripe for appellate review. Further, the RO in its denial of the appellant's apportionment claim found that the appellant reported monthly expenses that were grossly inflated, however no attempt was made by the RO to have the appellant provide objective evidence of her expenses, such as copies of bills and statements, prior to issuing a decision on the claim. The Board notes that the appellant, on her VA form 21-0788, reported monthly expenses to include rent of $2,500.00, utilities of $725.00, and childcare $1,500.00. However, the record also indicates that the appellant did not have custody of C.E., N.E., D.E., and R.E., and that she lived with her grandmother. As the financial status of both parties is also a threshold matter in determining entitlement to an apportionment, the Board finds that the appeal is not ripe for review and remand is necessary for clarification of the appellant's monthly expenses. Because the record before the Board contains conflicting evidence regarding the parties' residential status and lacks objective evidence of the appellant's financial status, the Board finds that this matter is not ripe for appellate review and remand necessary. This matter is REMANDED for the following actions: 1. Request the appellant to provide income and expense information for the entire appeal period, along with any objective supporting documentation. The appellant should be informed of the importance of this information and that it is essential to understand the parties' finances in adjudicating this apportionment matter. 2. Request the parties to provide documentation of their residential status to include objective documentation such as lease agreements, rental or mortgage statements, or utility bills. The parties should clarify whether they lived apart during the entirety of the appeal period and whether they continue to reside apart. 3. Request the parties to provide any updated state court documents relating to divorce proceedings, child custody, and support. 4. Notify the parties that if, following the adjudication of the claim, disagreement remains, a new VA form 10182 must be submitted within 60 days of notification of the decision and that the case will not automatically be returned to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Palidar, E. 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.