Citation Nr: A25108317 Decision Date: 12/16/25 Archive Date: 12/16/25 DOCKET NO. 240905-473054 DATE: December 16, 2025 ORDER Entitlement to an apportionment of the Veteran's Department of Veterans Affairs (VA) compensation benefits to the appellant, for the benefit of minor children, in the amount of the dependency allowance for HHR and HWR, is granted. FINDINGS OF FACT 1. The appellant SMJ is the Veteran's former spouse and mother to children HHR and HWR; the parties divorced in August 2022. 2. HHR and HWR are the Veteran's biological children and have not been a member of the Veteran's household at any time during the period under review. 3. In February 2023, the appellant submitted a claim for apportionment on behalf of children HHR and HWR. 4. The Veteran was paid additional compensation for two dependents HHR and HWR claimed on his award. See VA Form 21-686c, Application Request to Add and/or Remove Dependents. 5. An apportionment of the amount of dependency allowance received for dependent children would not result in undue hardship on the Veteran. CONCLUSION OF LAW The criteria for apportionment of the Veteran's VA compensation benefits to appellant on behalf HHR and HWR, in the amount of the dependency allowance for dependents received, have been met. 38 U.S.C. § 5307; 38 C.F.R. §§ 3.450, 3.451. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from July 2012 to August 2021, and was discharged under honorable conditions. The appellant, SMJ, is the mother and primary custodial parent of HHR and HWR, the Veteran's biological children. The parties divorced in August 2022. The case comes to the Board of Veterans' Appeals (Board) on appeal from a June 2024 apportionment decision of a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ), which denied the appellant's claim for apportionment on behalf of HHR and HWR. See Notification Letter dated June 2024, which returned as undelivered. In September 2024, the appellant filed a VA Form 10182, Decision Review Request: Board Appeal (NOD), on which she identified the June 2024 AOJ decision and elected the Evidence Submission docket. The Board acknowledges the appellant's VA Form 10182 was submitted in September 2024, more than 60 days after the issuance of the June 2024 AOJ decision on appeal. 38 C.F.R. § 20.402. However, the Board finds good cause has been shown to extend the filing deadline. The record shows the appellant previously submitted a change of address in July 2023. However, the June 2024 decision was sent to an old address for the appellant, and returned as undeliverable, which would serve as good cause to extend the filing deadline. A copy of the AOJ decision was re-sent to the appellant in July 2024 to the correct mailing address. Thus, the appellant's September 2024 VA Form 10182 NOD is accepted as a timely submission to initiate her appeal. See Ferko v. McDonough, 37 Vet. App. 262 (2024) (stating VA can require a claimant to fill out a particular form and can dismiss nonconforming or untimely filings but a failure to follow claims processing rules does not affect the Board's jurisdiction). Thus, the Board may only consider the evidence of record at the time of the June 2024 apportionment decision on appeal; a brief or argument filed by the party who did not file the NOD if received within 30 days of the notice of the content of the NOD; and any evidence received within 90 days following the notice that the appeal had been docketed. 38?C.F.R. §§?20.400-20.405. The record reflects both the Veteran and SMJ were mailed copies of the AMA Initial and Final Notification Letters March 2025 and May 2025. The Board recognizes the appellant is pro se in this appeal. Issue: Entitlement to an apportionment of the Veteran's VA compensation benefits to appellant on behalf of minor children HHR and HWR. Legal Criteria VA regulations provide for two types of apportionments. The first type is a "general" apportionment, which may be paid under the circumstances set forth in 38 C.F.R. § 3.450. More specifically, all or any part of the compensation payable on account of any veteran may be apportioned if the veteran is not residing with his spouse or children, and the veteran is not reasonably discharging his responsibility for the spouse's or children's support. 38 U.S.C. § 5307(a)(2); 38 C.F.R. § 3.450(a)(1)(ii). No apportionment will be made where the veteran is providing for his dependents. 38 C.F.R. § 3.450(c). 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 is a "special" apportionment. Under this type of apportionment, without regard to any other provision regarding apportionment, where hardship is shown to exist, compensation may be specially apportioned between the veteran and his 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 dependents, and the apportionment claimants. The amount apportioned should generally be consistent with the total number of dependents involved. Ordinarily, apportionment of more than 50 percent of the veteran's benefits would constitute undue hardship on him or her, while apportionment of less than 20 percent of his or her benefits would not provide a reasonable amount for any apportionee. 38 C.F.R. § 3.451. A veteran cannot prevail on a claim of hardship when he or she is receiving additional benefit for a dependent and the apportioned amount is no more than that additional benefits. See Hall, 5 Vet. App. at 295. Both types of apportionments (either "general" or "special" apportionment) are payable to a spouse or a dependent. 38 U.S.C. § 5307(a)(2); 38 C.F.R. §§ 3.450(a)(1)(ii), 3.451. 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). Analysis Initially, the Board clarifies the period under review in this appeal is from February 10, 2023 (the date of receipt of the claim) to June 12, 2024 (the date of notification letter of the apportionment decision). The appellant seeks an apportionment of the Veteran's VA compensation benefits on behalf of their children HHR and HWR. She asserts the Veteran has not paid the court ordered child support and that she is experiencing financial hardship. In February 2023, the appellant submitted her apportionment claim on behalf of minor children HHR and HWR. The appellant stated the Veteran has failed to pay the court ordered amount of child support and is in arrears for both child support and spousal maintenance. The appellant also requested that her personal information and address remain redacted for her safety and protection due to domestic violence and child abuse. See VA Form 21-0788, Information Regarding Apportionment of Beneficiary's Award, received February 2023. In July 2023, the record shows the appellant submitted a change in address, updating her mailing and contact information. In July 2023, the appellant also submitted court documentation reflecting Final Order on child support and spousal maintenance. Based on financial need and evidence of the Veteran's ability to pay, the Court found the amount of $982.32 per month in child support and $862.40 per month in spousal maintenance. See Final Orders dated August 2022. The Court order reflects the mutual agreement of the parties for the Veteran to complete a Substance Abuse and Domestic Violence evaluation before further contact with the children. The Court order also shows that a judgement for $8,438.37 for retroactive child support and spousal maintenance was entered against the Veteran, in favor of the mother SMJ. Id. By June 2024 letter, the AOJ denied appellant's apportionment claim based on the reasoning that "an ex-spouse cannot be considered a dependent of the veteran for benefit purposes" and that financial need was not shown on the part of the appellant for an apportionment. See June 2024 Notification Letter. The record reflects that prior to the issuance of the apportionment decision on appeal, the Veteran failed to submit any evidence in response to the AOJ's request for information. Specifically, the Veteran was asked to complete and return an enclosed VA Form 21-0788, Information Regarding Apportionment of Beneficiary's Award, a form used to provide income, asset and expense information, as well as provide any documentation of support or evidence that he is contributing to the support of dependents HHR and HWR. See Notification letter dated March 2024. Here, the initial question at issue is whether the Veteran has been reasonably discharging his responsibility for support of his children. For the reasons set forth below, the Board finds that the evidence does not establish that Veteran is reasonably discharging his responsibility for his children's support. First, it is not in dispute that HHR and HWR are the Veteran's biological children, and they have not been in the Veteran's custody at any point during the appeal and the appellant is the primary custodian of the parties' minor children. Next, the appellant has submitted multiple statements explaining her need for financial assistance for necessities such as food and shelter. The appellant has stated she can only work part time with minimum wage because one of the children is "autistic and needs constant attention." See Lay Statements from SMJ received July 2024 and September 2024. However, the record before the Board contains no other evidence showing the Veteran is reasonably discharging his responsibility for his children's support. Critically, the Veteran has not responded with any evidence showing he is reasonably discharging his responsibility for his children's support. The Veteran has failed to complete a VA Form 21-0788 or provide any financial information listing his income and expenses at any time during the appeal period, as requested, frustrating VA's efforts to gain insight into his financial situation. The record shows that the Veteran is paid at a 100 percent disability rate with two dependents (his minor children), in a monthly VA compensation amount $3,980.77 as of March 1, 2024. Meaning, the Veteran has claimed and received additional dependency allowance for the dependent minor children. See VA Form 21-686c, Application Request to Add and/or Remove Dependents. Because the Veteran failed to provide financial information, the Board is unable to make assumptions about the existence of additional income, if any, as well as his expenses or assets. 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, nor has the Veteran provided any evidence upon which to find the apportionment at issue would result in financial hardship to him. Thus, for the period under review, the Board finds that the Veteran was not reasonably discharging his responsibility for the support of his minor child, and the threshold requirements for a general apportionment have been met. 38 U.S.C. § 5307(a)(2); 38 C.F.R. § 3.450(a)(1)(ii). Further, an apportionment of the amount of additional dependency allowance the Veteran received for his minor child would not result in undue hardship. The Board notes the Veteran cannot prevail on a claim of hardship when he is receiving additional benefits for his dependent child(ren) and the apportioned amount is no more than the additional benefits. See Hall v. Brown, 5 Vet. App. 294 (1993). Additionally, the Board finds a monthly apportionment for minor child in the amount of the dependency allowance for the claimed dependent child is warranted. See 38 C.F.R. § 3.451 (establishing a basic range from 20 to 50 percent of beneficiary's monthly payment as a reasonable apportionment amount with an apportionment in excess of 50 percent being presumed to result in undue hardship to the beneficiary); see also 38 C.F.R. § 3.453 (indicating the rate of apportionment of disability compensation will be determined under 38 C.F.R. § 3.451). A dependent child is entitled to share the dependency benefits received by the Veteran on their behalf. The amount apportioned by this decision is equivalent to the additional dependency allowance the Veteran received during the period under review. As noted above, the Veteran is paid additional monthly compensation payment for each additional child under age 18 and paid as a Veteran with 100 percent disability rating with two dependents. In sum, the criteria for a monthly general apportionment of the Veteran's VA benefits on behalf of HHR and HWR, in the amount the Veteran received for his minor children have been met. 38 U.S.C. § 5307; 38 C.F.R. § 3.450. The record reflects that the Veteran has not been reasonably discharging his responsibility for the support of the dependent children. Additionally, the apportionment is not shown to cause him undue financial hardship. See Hall, 5 Vet. App. at 295. Accordingly, the appellant's claim is granted. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board An, Sonja 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.