Citation Nr: A25035604 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 231019-401818 DATE: April 17, 2025 ORDER Entitlement to an apportionment of the Veteran's VA compensation benefits to the appellant (the Veteran's then spouse), from April 2023 to August 2023, in the amount of the dependency allowance for dependent spouse is granted. FINDINGS OF FACT 1. The appellant is the former spouse. See Divorce Decree received on August 1, 2023. 2. In April 2023, the appellant submitted a claim for apportionment benefits for herself as then spouse of Veteran. 3. The Veteran was paid additional compensation for dependent spouse claimed on his Declaration of Status of Dependents (VA Form 21-686). 4. For the period prior to divorce, an apportionment of the amount of dependency allowance paid for then spouse would not result in undue hardship on the Veteran. CONCLUSION OF LAW The criteria for an apportionment of the Veteran's VA compensation benefits to the appellant, from April 2023 to August 2023, in the amount of the dependency allowance paid have been met. 38 U.S.C. § 5307; 38 C.F.R. §§ 3.450. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1988 to October 1992. The appellant is the Veteran's former spouse. The case is before the Board of Veterans' Appeals (Board) on appeal from a September 2023 apportionment decision by the Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In that decision, the AOJ denied the appellant's apportionment claim because she is no longer considered a legal dependent. In the October 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), the appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the September 2023 AOJ decision on appeal, and a brief or argument filed by the party who did not file the NOD if received within 30 days of the notice of the substance of the NOD. 38?C.F.R. §§?20.400-20.405. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The record reflects both the Veteran and appellant were mailed copies of the AMA Initial and Final Notification Letters January 2024 and February 2024. The Board recognizes the appellant is pro se in this appeal. 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 Issue: Entitlement to an apportionment of the Veteran's VA compensation benefits to the appellant (the Veteran's then spouse) in the amount of the dependency allowance for the appeal period is granted. At the outset, the Board clarifies that the appeal period is from April 3, 2023 (the date of receipt of the claim) to August 1, 2023, the date VA received notification of Divorce Decree. The record reflects that the Veteran and appellant divorce finalized in July 2023. See Final Judgement of Dissolution of Marriage, received August 1, 2023. Upon a divorce from a veteran, the ex-spouse loses status as a veteran's spouse, including any potential entitlement to an apportionment of VA disability compensation, effective from the date of the divorce. See 38 U.S.C. § 101 (31) (2012); 38 C.F.R. §§ 3.1 (j), 3.50 (2018); Marrero v. Gober, 14 Vet. App. 80, 82 (2000). A divorce severs the dependent relationship. Thus, the Board will address the issue of entitlement to an apportionment for the period prior to August 1, 2023. A veteran's benefits may be apportioned if the 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). When a veteran is not residing with his or her spouse, all or any part of the compensation benefits payable may be apportioned as may be prescribed by the Secretary. 38 U.S.C. § 5307 (c). Here, the appellant submitted her apportionment claim in April 2023. See VA Form 21-0788, Information Regarding Apportionment of Beneficiary's Award, received April 2023. By rating decision of September 2023, the AOJ denied appellant's apportionment claim because she is no longer considered a legal dependent. Indeed, a divorce severs the dependent relationship. However, as explained above, at the time of filing her claim in April 2023, the appellant was then the Veteran's spouse. Further, the record shows the Veteran has claimed and received additional dependency allowance for the dependent spouse since November 2009. See Declaration of Status of Dependents (VA Form 21-686). To that end, the Board observes the Veteran's failure to provide evidence showing that he provided support establishes he was not reasonably discharging his responsibility for then spouse while, at the same time, received additional monthly compensation in the form of dependency allowance for claiming his dependent spouse. Thus, for the appeal period, the Board finds that the Veteran was not reasonably discharging his responsibility for the support of the appellant, 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). A dependent 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 for appellant spouse. The Board notes the Veteran cannot prevail on a claim of hardship when he or she is receiving additional benefits for his or her dependent and the apportioned amount is no more than the additional benefits. See Hall v. Brown, 5 Vet. App. 294, 295 (1993). In sum, the criteria for a monthly general apportionment of the Veteran's VA benefits on behalf of appellant (Veteran's then spouse), have been met. 38 U.S.C. § 5307; 38 C.F.R. § 3.450. The Veteran was not providing for his spouse and an apportionment of the dependency allowance he received on the dependent's account during the appeal period cannot, as matter of law, result in undue hardship to her. See Hall, 5 Vet. App. at 295. As a result, a general apportionment on behalf of appellant, in the amount the Veteran received for her dependent spouse, for the appeal period from April 2023 to August 2023, is granted. Lastly, as to the appellants contention that the Veteran is not paying her court ordered alimony, the Board finds that state domestic relations proceedings play no role in VA apportionment decisions and any remedy the appellant may desire in such a situation lies with the state court and not with VA. Batcher v. Wilkie, 975 F.3d 1333 (2020). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.A., Counsel 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.