Citation Nr: A25035156 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 220524-245298 DATE: April 16, 2025 ORDER The award of an apportionment of the Veteran's Department of Veterans Affairs (VA) compensation benefits in the amount of $800.00 per month to K.A., on behalf of herself and A.A., was improper; the Veteran's appeal to terminate the apportionment, during the relevant period on appeal, is granted. FINDING OF FACT For the relevant review period on appeal, K.A. did not demonstrate financial hardship. CONCLUSION OF LAW The award of an apportionment of the Veteran's VA compensation benefits in the amount of $800.00 per month to K.A., on behalf of herself and A.A., was improper. 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 from January 1987 to May 1987 and from September 1994 to August 1998. K.A. is the Veteran's former spouse. A.A. is the Veteran's and K.A.'s child. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2022 decision of a VA Regional Office (RO), which awarded a $800.00 per month apportionment of the Veteran's VA compensation benefits to K.A., on behalf of herself and A.A., effective March 1, 2022. The Board notes that the Veteran is the appellant in this appeal as he appealed the propriety of the apportionment of his VA disability compensation benefits to K.A., on behalf of herself and A.A. Specifically, in the May 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), the Veteran elected the Direct Review docket. K.A. did not elect to change the docket. Therefore, the Board may only consider the evidence of record at the time of the May 2022 decision on appeal. 38 C.F.R. §§ 20.301, 20.405. Thus, as evidence was submitted by both parties during the period after the agency of original jurisdiction (AOJ) issued the decision on appeal, the Board has not considered it in its decision. As an initial matter, the Board acknowledges that A.A. reached adulthood during the pendency of this appeal, as she turned 18 years old in July 2023. As a result, A.A. was removed from the Veteran's award of benefits as of the date of her 18th birthday, and the $400.00 per month apportionment for A.A. terminated on that date. Additionally, the AOJ terminated the $400.00 per month apportionment to K.A. effective February 1, 2024, the first of the month following the parties' divorce. See August 2024 correspondence. However, the review period for consideration in the instant appeal is from February 2022, the date of K.A.'s claim for an apportionment of the Veteran's VA compensation benefits, to May 3, 2022, the date of the decision on appeal. Propriety of the apportionment of the Veteran's VA compensation benefits. 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 those 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). In a May 2022 decision, the AOJ granted a special monthly apportionment to K.A., on behalf of herself and the parties' child, A.A., in the amount of $800.00. Specifically, the AOJ awarded a monthly apportionment of $400.00 for K.A. and $400.00 for A.A. The Veteran filed the instant appeal. The Board reiterates that the review period for consideration of the claim is from February 1, 2022, the date of K.A.'s claim for an apportionment of the Veteran's VA compensation benefits, to May 3, 2022, the date of the decision on appeal. After a review of the all the evidence, the Board finds that the Veteran reasonably contributed to the support of K.A. and A.A. during the review period of the appeal. Notably, in his April 2022 VA Form 21-0788, Information Regarding Apportionment of Beneficiary's Award, the Veteran reported paying K.A.'s $412.00 monthly car note, K.A.'s and A.A.'s car insurance totaling $238.98, and $350.00 in monthly child support. The Veteran submitted a screenshot of a cash app payment transaction to K.A. in the amount of $350.00. The Board notes that while the transaction indicates that this is from February 4th, the screenshot does not include the year of the transaction. The Veteran also submitted a transaction report indicating payments of $412.00 in February and March for a 2012 car. Additionally, the Veteran submitted his bank checking account statements showing a March 3, 2022, auto withdrawal of $239.00 for auto insurance; a February 11, 2022, and March 11, 2022, withdrawal of $412.00 for the car loan; and a March 7, 2022, $350.00 cash app withdrawal. Accordingly, the threshold requirements for a general apportionment have not been met as the evidence indicates that the Veteran was providing a reasonable amount of support for K.A. and A.A during the review period on appeal. Regarding, a special apportionment, the evidence of record indicates that the K.A. received $1,347.00 in Social Security benefits on behalf of herself and $673.00 in Social Security benefits for A.A during the review period. Additionally, in her February 2022 VA Form 21-0788, K.A. indicated that A.A. made $800.00 per month from her employment. As for expenses, K.A. reported monthly expenses totaling $4,056.73. The Board notes that K.A. included a $1,000 expense for "college preparation" and a $1,000.00 expense for "high school senior expenses" in addition to the $200.00 per month school expense. The Board notes that K.A. did not provide documentation as to these expenses or provide any context as to what college preparation or high school senior expenses entailed in addition to the reported $200.00 monthly "school expense." For these reasons, the Board cannot rely on K.A.'s report of a monthly $2,000.00 expense for these activities and thus will not use this figure in its analysis of undue hardship. Additionally, the Board notes that the appellant reported a debt of $8,000.00. However, she did not indicate what her monthly obligation was for paying off this debt, and did not provide any context/documentation as to this debt. Thus, for these reasons, while sympathic to financial concerns, the Board will not use the $8,000.00 figure in its analysis for undue hardship. Accordingly, the Board finds that K.A. had approximately $2,056.73 in reasonable monthly expenses during the review period. Using this figure, the Boards finds that K.A. had a monthly deficit of approximately $37.00, when considering her receipt of monthly Social Security benefits. However, the Board notes that K.A.'s VA Form 21-0788 did not include the $350.00 monthly payment from the Veteran, which is considered countable monthly income. Including the monthly $350.00 the Veteran paid during the review period, the Board finds that financial hardship on the part of K.A. had not been demonstrated, as her monthly income exceeded her reasonable expenses. ? In sum, as K.A. did not demonstrate hardship as required for a special requirement under 38 C.F.R. § 3.451 during the applicable review period, the Board finds the award of a special apportionment of the Veteran's VA compensation benefits in the amount of $800.00 per month, to K.A., on behalf of herself and A.A., was improper; the Veteran's appeal to terminate the apportionment, during the relevant period on appeal is granted. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Robinson 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.