BVA9504167 
DOCKET NO.  93-07 016     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia

THE ISSUE

Entitlement to an increased apportionment of the veteran's
disability compensation benefits.

ATTORNEY FOR THE BOARD

Christine E. Puffer, Associate Counsel

INTRODUCTION

The veteran had active service from August 1967 to July 1970.

This matter comes before the Board of Veterans' Appeals (Board)
on appeal from an October 1992 special apportionment decision of
the Department of Veterans Affairs (VA) Atlanta, Georgia,
Regional Office (RO).

CONTENTIONS OF APPELLANT ON APPEAL

The appellant essentially contends that she is entitled to, at
least, an apportionment equaling the benefits that the veteran
receives from the VA on account of his marriage to her.  She has
indicated that this amount is $103.  The appellant maintains that
the veteran would suffer no hardship as a result of this
increased apportionment.  She reports that she is in poor health
and unable to work.  Therefore, she is requesting an increased
apportionment.  The veteran has conceded that he does not
contribute to his spouse's support.  He has reported that they do
not have any children, and that he intends to obtain a divorce.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the appellant is entitled to an apportionment of the
veteran's compensation benefits in the amount of the additional
benefits being paid because of the appellant.

FINDINGS OF FACT

1.  All evidence necessary to an equitable adjudication of the
instant claim has been obtained by the RO.
2.  The veteran is not living with the appellant, and is not
reasonably discharging his responsibility to her.

3.  An apportionment of the veteran's compensation benefits in
the amount equal to that which is being paid because of the
appellant would not result in undue hardship to the veteran.

CONCLUSION OF LAW

The criteria for awarding an apportionment of compensation to the
appellant in the amount being paid because of the appellant are
met.  38 U.S.C.A. § 5307 (West 1991); 38 C.F.R. §§ 3.450, 3.451,
3.452 (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

A veteran's disability compensation benefits may be apportioned
if the veteran is not living with his spouse, and if the veteran
is not reasonably discharging his responsibility for the spouse's
support.  38 U.S.C.A. § 5307(a)(2) (West 1991); 38 C.F.R.
§ 3.450(a)(ii) (1994).  Furthermore, where hardship is shown to
exist, a special apportionment may be performed on the basis of
the facts in an individual case as long as it does not cause
undue hardship to the other person in interest.  38 C.F.R.
§ 3.451.  Factors to be considered include: the amount of VA
benefits payable; the resources and income of the veteran; the
resources and income of the dependent in whose behalf
apportionment is claimed; and the special needs of the parties
concerned.  Id.

The appellant essentially contends that the veteran is not
reasonably discharging his responsibility for her support as she
is currently receiving only a $45 apportionment.  She has
reported that she has a deteriorating hip, is in poor health, and
is unable to work.  The appellant maintains that an increased
apportionment to $103 a month, the excess amount that the veteran
receives each month on account of her, would not create a
hardship to the veteran.  The veteran has reported that he does
not contribute anything to his spouse's care.

The appellant has indicated that her monthly income is $310 and
that she does not live with the veteran.  She has reported no
assets, with debts totaling $3,289.  The appellant has provided
two listings of expenses.  In light of her recent report of being
unable to work and of increased disability due to hip problems,
the Board shall accept her most recent accounting as reflective
of her expenses.  As she has provided ranges of expenses in
certain categories, her total expenses shall be calculated using
the lower ranges listed.  In light of these factors, her monthly
expenses are $990.  The Board observes that the appellant, has
failed to indicate what monthly amount, if any, she is required
to pay on her debts, so this figure is not included in her
monthly expense total.  The appellant's monthly expenses exceed
her income by $680, in addition to $3,289 in debt.

The regulations regarding disability compensation rates for
wartime service are contained in 38 C.F.R. § 1114.  The updated
disability compensation basic rates are published in VA's
Adjudication Procedure Manual, M21-1, Appendix B.  Given that the
veteran's expenses were listed as of August 1992, the Board shall
utilize VA compensation figures for that time period in
evaluating the instant claim.  The veteran had reported his
monthly income to include $547 from the Social Security
Administration and at least $1,730 from the VA.  In calculating
the veteran's income in its sspecial apportionment decision of
October 1992, the RO reported the veteran's VA award, minus the
appellant's $45 apportionment, to be $1,716.  However, M21-1,
Appendix B, Change 8 (April 21, 1992) indicates that the
veteran's compensation rate for that period would be $1,780.
Deducting the appellant's apportionment, the veteran's VA income
would have been $1,735, providing him with a total income of
$2,282.  Among the veteran's listed expenses was a note owed his
mother on his car, of $361 a month, with an $800 balance listed.
Given that over two years have passed since this was listed as an
expense of the veteran's, it may be assumed that this note has
been paid off.  While the same assumption may be applied to the
veteran's other debts, absent information regarding the balance
of the individual loans, the Board shall continue to include
these figures in the relevant calculations.  As such, the Board
finds that the veteran's total monthly expenses are $1,836, and
his income exceeds his expenses by $446.  It is noted that the
veteran additionally had listed assets of a $2,000 bank account.
No amounts were provided regarding the value of his home and car.

The appellant has essentially requested that the Board grant an
apportionment totaling the extra amount awarded the veteran on
the basis of his marriage.  In an October 1993 statement, she
indicated that this amount was $103.  The veteran's current
disability compensation rate for himself and his wife is $1,879.
If the veteran were not married, he would be receiving $1,774 a
month.  See M21-1, Part I, Change 18, Appendix B (March 17,
1994).  Therefore, the additional amount awarded the veteran on
account of his marriage to the appellant is currently $105.  It
is noted that the veteran's monthly income exceeded his expenses
by over four times that amount, in addition to at least $2,000 in
assets.  As the appellant's monthly expenses and debts greatly
exceed her income, she does not live with the veteran, and he is
currently contributing only $45 a month to her support, the Board
concludes that he is not reasonably discharging his
responsibility to her and that an apportionment of $105 is
appropriate.  It is noted that the veteran is incurring no
expenses on account of the appellant and will suffer no loss as a
result of this additional apportionment.  Accordingly, the Board
finds that that this apportionment shall result in no hardship to
the veteran.  See 38 C.F.R. §§ 3.450, 3.451; Hall v. Brown, 5
Vet.App. 294, 295 (1993).  See also M21-1, Part IV, par. 19.05
("If the veteran is receiving additional benefits for dependents
and the evidence shows that he or she is not reasonably
contributing to their support, hardship on the veteran would not
result from apportionment of the additional amounts payable for
such dependents.").

ORDER

An apportionment of the veteran's compensation benefits in the
amount of $105 is granted.

          JACQUELINE E. MONROE
          Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988.  Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988).  The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.