Decision Date: 11/06/95				Archive Date: 
11/05/95 
DOCKET NO.  89-40 747	)	DATE 
	) 
	) 
 
On appeal from the 
Department of Veterans Affairs Regional Office in New York, 
New York 
 
 
THE ISSUE 
 
Entitlement to an effective date prior to August 1, 1992, 
for the award of an apportionment of the veteran's 
compensation benefits on behalf of the veteran's dependent 
sons, [redacted] and [redacted], and the appellant. 
 
 
REPRESENTATION 
 
Appellant represented by:	American Red Cross 
 
Appellee represented by:     Veterans of Foreign Wars of the 
United States 
 
 
ATTORNEY FOR THE BOARD 
 
Christine E. Puffer, Associate Counsel 
 
INTRODUCTION 
 
The veteran had active service from June 1979 to August 
1985. 
 
This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a September 1993 Special 
Apportionment Decision of the Department of Veterans Affairs 
(VA) New York, New York, Regional Office (RO) which granted 
the appellant an apportionment, effective from August 1, 
1992. 
 
 
CONTENTIONS OF APPELLANT ON APPEAL 
 
The appellant contends that she initially filed for 
apportionment benefits in December 1987, and, after 
receiving an adverse decision, reapplied in December 1989.  
Therefore, she requests that the apportionment be made 
effective from the latter date.  She reports that she 
remains married to the veteran, although they have been 
living apart since 1988.  The appellant emphasizes that the 
veteran is not reasonably discharging his responsibilities 
with respect to herself and their two sons, and that the 
additional amount received by the veteran on account of them 
should be apportioned as of an earlier effective date. 
 
 
CONTENTIONS OF APPELLEE ON APPEAL 
 
It is contended on behalf of the veteran that financial 
hardship to the veteran would result were the apportionment 
be made effective from an earlier date in that such action 
would create a large overpayment balance on his account.  
This would serve to cause severe hardship as the veteran has 
no assets and has spent his savings on a drug habit. 
 
 
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 evidence supports granting an 
effective date prior to August 1, 1992, for an apportionment 
of the veteran's disability benefits on behalf of his son, 
[redacted], and the appellant, but that the preponderance of 
the evidence does not support granting an earlier effective 
date for an apportionment on behalf of the veteran's son, 
[redacted]. 
 
 
FINDINGS OF FACT 
 
1.  All evidence necessary for an equitable adjudication of 
the instant claim has been obtained by the RO. 
 
2.  By rating action of December 1985, the veteran was 
awarded disability compensation benefits.  In September 
1986, the veteran began receiving additional disability 
compensation benefits on behalf of his dependent spouse, the 
appellant. 
 
3.  The VA received a claim from the appellant for 
apportionment of the veteran's disability benefits on behalf 
of herself and their son, [redacted], on December 14, 1987.  
The veteran began receiving additional disability 
compensation benefits on behalf of [redacted] in February 
1987.  The RO received [redacted]'s birth certificate in May 
1987. 
 
4.  The appellant submitted a claim for apportionment on 
behalf of the veteran's son [redacted] in October 1991.  A copy 
of [redacted]'s birth certificate was received at the RO in 
September 1992, and the veteran began receiving additional 
compensation benefits on [redacted]'s behalf in December 1992. 
 
5.  At all times relevant to the instant inquiry the veteran 
failed to reasonably discharge his responsibility for the 
support of his dependents.  The RO has awarded the appellant 
an apportionment of the additional compensation benefits for 
a dependent spouse and two children effective August 1, 
1992. 
 
 
CONCLUSION OF LAW 
 
The criteria for an effective date of December 14, 1987, for 
an apportionment of the additional disability compensation 
benefits received by the veteran on behalf of the appellant 
and the veteran's son, [redacted], have been met; however, the 
evidence does not support granting an effective date prior 
to that awarded by the RO on behalf of the veteran's 
dependent son, [redacted].  38 U.S.C.A. §§ 5107(a), 5110, 
5111(a) (West 1991); 38 C.F.R. § 3.400 (1994). 
 
 
REASONS AND BASES FOR FINDINGS AND CONCLUSION 
 
As a preliminary matter, the Board finds that the 
appellant's claim is well-grounded within the meaning of 38 
U.S.C.A. § 5107(a).  See Murphy v. Derwinski, 1 Vet.App. 78, 
81 (1990).  That is, the Board finds that she has presented 
a claim which is not implausible when her contentions and 
the evidence of record are viewed in the light most 
favorable to the claim.  The Board is also satisfied that 
all relevant facts have been properly and sufficiently 
developed. 
 
 
 
 
I.  Background 
 
The appellant and the veteran were married in August 1986.  
At that time the veteran was receiving disability 
compensation benefits.  In September 1986, the veteran began 
receiving additional compensation benefits on behalf of the 
appellant, as his dependent.  In January 1987, the veteran's 
son, [redacted], was born, and in February 1987 the veteran 
began receiving additional disability compensation benefits 
on his behalf.  In May 1987 the RO acknowledged receipt of 
[redacted]'s birth certificate.  Although the appellant 
initially submitted a claim for an apportionment that was 
received in June 1987, she withdrew it prior to any 
adjudicatory action on the part of the RO as she and the 
veteran had reconciled.  However, on December 14, 1987, the 
RO received a statement from the appellant indicating that 
she wished to reapply for apportionment benefits for herself 
and [redacted].  There is no indication that the RO took any 
action on this claim.  The appellant reiterated her desire 
to obtain an apportionment on various occasions in 
subsequent correspondence.  However, it was not until May 
1988 that the RO issued letters to the appellant and 
appellee, seeking the submission of relevant evidence.  
 
By Special Apportionment Decision of June 1988, the RO 
denied the appellant's claim for an apportionment, noting 
that the veteran's service-connected rating had been reduced 
from 100 to 30 percent, and that an apportionment would thus 
cause the veteran undue hardship.  A notice of this decision 
was issued to the appellant.  The appellant submitted a 
statement received on July 6, 1988, expressing her 
disagreement with the adverse decision, reporting that she 
had stopped working as of that month, and had no income.  In 
September 1988 the RO issued notices to the appellant and 
the veteran, again requesting that they submit relevant 
evidence.  Later that month, the appellant submitted the 
requested evidence, stating that she wished to reapply for 
apportionment benefits, and the veteran proffered a 
statement in opposition to the appellant's claim.  In 
November 1988, the RO informed the appellant that her claim 
for apportionment had previously been denied.  However, by 
letter of December 1988, the appellant informed the RO that 
she wished to appeal the denial, appending further evidence 
for RO consideration.  In February 1989, a VA District 
Counsel notified the RO that an appeal had been received 
from the appellant in December 1988, and that there was no 
indication that the RO had responded to the appeal.   
 
In May 1989, the RO issued a statement of the case, 
indicating that the appellant had originally submitted a 
claim on December 14, 1987, and had appealed the RO's 
adverse decision of that claim on July 6, 1988.  The 
appellant submitted a substantive appeal in June 1989, and 
proffered testimony on her behalf at a September 1989 
hearing.  Apparently in response to a RO letter of that 
month denying her further benefits, the appellant responded 
in October 1989, indicating that she intended to pursue her 
appeal.  The appellant subsequently submitted a statement in 
September 1990 reporting that she and the veteran had a 
second son.  There is no indication that the RO corresponded 
further with the appellant in the interim period.  In an 
October 1991 letter, the appellant stated that she had 
applied for apportionment for her sons, [redacted] and 
[redacted], requesting support for her sons.  She submitted a 
certified copy of her son [redacted]'s birth certificate in 
September 1992.  In December 1992, additional dependency 
benefits were added to the veteran's disability compensation 
award on [redacted]'s behalf.   
 
By Special Apportionment Decision of September 1993, the 
appellant was granted an apportionment in the amount of 
additional benefits for her, as the veteran's dependent 
spouse, and the children.  This was made effective August 1, 
1992.  The appellant contested this effective date, noting 
that she initially filed her claim in 1987 and, after being 
rejected, again in December 1989.  In a March 1995 
supplemental statement of the case, the RO reported that 
August 1992 was established as the effective date for her 
claim because to apportion the veteran's benefits back to 
the date of the original claim would create a large 
overpayment in the veteran's account, resulting in undue 
hardship on the veteran. 
 
II.  Analysis 
 
Generally, the effective date of an award of VA compensation 
shall be the date of receipt of the claim, or the date 
entitlement arose, whichever is later.  38 U.S.C.A. § 
5110(a); 38 C.F.R. § 3.400.  In an original claim for 
apportionment, as here, the effective date will be 
designated in accordance with the facts found.  38 C.F.R. § 
3.400(e).  A veteran's disability compensation benefits may 
be apportioned if the veteran is not living with his spouse 
and children and is not reasonably discharging his 
responsibility for their support.  38 U.S.C.A. § 5307(a)(2); 
38 C.F.R. § 3.450(a)(ii). 
 
A "claim" is defined in the VA regulations, under 38 C.F.R. 
§ 3.1(p), as "a formal or informal communication in writing 
requesting a determination of entitlement, or evidencing a 
belief in entitlement, to a benefit."  Under 38 C.F.R. § 
3.155, any communication or action indicating a claimant's 
intent to apply for a VA benefit may be considered an 
"informal claim," so long as it identifies the benefit 
sought.  Generally, for VA benefit purposes, date of receipt 
means "the date on which a claim, information or evidence 
was received."  38 C.F.R. § 3.1(r).  Upon receipt of the 
informal claim, VA will forward to the claimant a formal 
claim form.  So long as that form is submitted to VA within 
one year of the filing of the informal claim, the date of 
the claim will be the date of receipt of the informal claim.  
The appellant's December 1987 statement seeking an 
apportionment on her and [redacted]'s behalf clearly fulfills 
the noted criteria for recognition as a claim.  The RO's 
failure to respond in a timely manner to that claim merely 
had the effect of keeping the claim open, and does not serve 
to render the claim "abandoned" for VA purposes.  See 38 
C.F.R. § 3.158.  The Board observes that in its statement of 
the case the RO implicitly recognized this procedural fact.   
 
The appellant's statement indicating her intent to appeal, 
submitted immediately after the RO's June 1988 adverse 
apportionment decision, clearly meets the criteria for 
acceptance as a notice of disagreement of that decision.  
See 38 C.F.R. § 20.201.  When, as here, a notice of 
disagreement was filed in a timely manner, the RO is 
required to issue a statement of the case, notifying the 
appellant of her right to file a substantive appeal.  See 38 
C.F.R. §§ 19.29, 19.30, 20. 202.  Once again, the RO's 
failure to perform this required procedural act until May 
1989 did not serve to terminate the appellant's appellate 
rights, and the appeal remained open.  At no relevant time 
could the appellant's appeal be deemed abandoned as she 
responded in a timely manner whenever requested to produce 
evidence by the RO.  See 38 C.F.R. § 3.158.  In view of the 
totality of the evidence, the Board finds that the correct 
date of claim for an apportionment for the appellant and 
[redacted] is the date of receipt of the appellant's initial 
claim, December 14, 1987.  In this regard, the Board notes 
that as of that date all necessary evidence, including 
[redacted]'s birth certificate, was of record.  However, the 
appellant did not submit a claim for an apportionment on 
[redacted]'s behalf until October 1991, and did not submit a 
copy of his birth certificate until September 1992.  As the 
necessary evidence was submitted within one year, the proper 
date of claim for an apportionment on behalf of [redacted] is 
October 1991. 
 
The next issue to resolve is at what date entitlement to an 
apportionment arose, which encompasses the issue of whether 
the appellant and the veteran's sons were entitled to an 
apportionment during the pendency of the appeal.  For both 
the appellant and the appellee, where a range of figures was 
offered, the Board's calculations utilized the lower range 
reported.  In factoring the veteran's income, the Board 
notes that his 100 percent service-connected rating for 
disseminated coccidiomycosis was reduced by rating action of 
May 1988 to 30 percent as reported in the June 1988 Special 
Apportionment Decision, but retroactive reinstatement of the 
total rating was effectuated by rating action of November 
1988.   
 
Based on a review of the income and expenses respectively 
reported by the veteran and the appellant, the Board 
observes that the appellant at all points relevant to the 
instant inquiry has consistently sustained a monthly 
shortfall in income over expenses, while the veteran has had 
excess income.  In its evaluation, the Board notes that 
although the appellant indicated in September 1989 that she 
was to take a year off from work, she has consistently 
reported a yearly income of at least $26,000.  While the 
June 1988 Special Apportionment Decision denying an 
apportionment noted a shortfall in the veteran's income 
created by the recent rating reduction, as stated, that 
reduction was subsequently vacated, and the total rating 
reinstated retroactively.  In light of this fact, using the 
figures utilized by the RO in June 1988, the veteran then in 
actuality had excess monthly income of over $1,000 as 
opposed to the appellant's $91 shortfall.  In view of the 
totality of the evidence of record, hardship clearly would 
not have resulted from an apportionment during the time 
period in issue. 
 
Although the veteran disputes the appellant's assertion that 
he has either failed to pay child support at all, or in a 
timely manner without judicial intervention, court records 
demonstrate that he has been delinquent or in arrears on his 
support payments on numerous occasions, and that his current 
child support order includes payments for support that is in 
arrears.  Although the Board notes that the figures reported 
by the appellant as expenses have varied, at all relevant 
points to the instant inquiry her expenses have exceeded her 
income, while the veteran had excess income.   
 
In light of the facts of the instant case, the Board finds 
that an apportionment of those additional benefits received 
by the veteran from December 1987 to August 1992 on behalf 
of the appellant and [redacted] would not result in undue 
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.")  
 
The Board's inquiry, however, does not end there.  Before 
benefits may be apportioned for a dependent spouse or child 
not residing with the veteran, a claim must be filed for or 
on the child's behalf.  38 C.F.R. § 3.452(a).  Additionally, 
the effective date of payment can be no sooner than the date 
of entitlement.  38 C.F.R. § 3.400.  As stated, in December 
1987 the veteran was already in receipt of additional 
dependency benefits on behalf of the appellant and [redacted], 
and the criteria for an apportionment on their behalf were 
met.  See 38 C.F.R. §§ 3.400(e), 3.401(b).  While the 
appellant previously informed the RO of the birth of the 
veteran's second son, [redacted], it was not until October 1991 
that she requested that an apportionment be granted on his 
behalf.  It was not until September 1992 that a copy of 
[redacted]'s birth certificate was received at the RO, and not 
until December 1, 1992, that the RO granted the veteran 
additional disability benefits for [redacted] as a dependent.  
Therefore, in accordance with facts found, an earlier 
effective date for a grant of an apportionment on behalf of 
[redacted] is not warranted. 
 
The RO has denied the appellant's request for an earlier 
effective date on the basis that a large overpayment to the 
veteran's account would result, which would impose undue 
hardship on the veteran.  However, the VA General Counsel 
(GC) has determined that the effective date of an 
apportionment "would not be altered by the fact that no 
withholding from the [veteran's] award had been made to 
accommodate the apportionment claimant's potential 
entitlement."  The GC held that if it were found that an 
apportionment were due retroactively, the principal 
beneficiary's (i.e., the veteran's) award "must be adjusted 
to accommodate the apportionee's entitlement, because there 
is no authority to pay more than the beneficiary's gross 
entitlement."  See General Counsel Opinion, June 20, 1985 (a 
copy of which has been included in the claims folder).   
 
In this regard, the Board further notes that the RO is 
mandated to amend the principal beneficiary's award to 
provide for withholding effective the first day of the month 
following the month in which the predetermination notice 
period elapses.  See M21-1, Part IV, paragraph 19.05(b).  
The RO's failure to implement withholding or to follow 
proper development procedures in a timely manner may not 
serve as a basis to deny an earlier effective date for an 
apportionment where such action creates an overpayment in 
the primary beneficiary's account. 
 
The Board has found that the veteran did not reasonably 
discharge his responsibilities for the appellant and his 
son, [redacted], at any relevant time prior to August 1, 1992.  
In accordance with facts found and the evidence of record, 
the Board finds that the appellant and her dependent son, 
[redacted], are entitled an earlier effective date of December 
14, 1987, for the apportionment of additional benefits 
received by the veteran on behalf of her and [redacted].NOTICE 
OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 5904(c)(2) (West 
1991), a finding or order of the Board of Veterans' Appeals 
upon review of an agent's or attorney's fee agreement may be 
reviewed by the United States Court of Veterans Appeals 
under 38 U.S.C.A. § 7263(d) (West 1991).  Under 38 U.S.C.A. 
§ 7266 (West 1991), a final decision of the Board of 
Veterans' Appeals may be appealed to the United States Court 
of Veterans Appeals by a person adversely affected by the 
decision within 120 days from the date of mailing of notice 
of the decision.  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 by the Board of Veterans' Appeals. 
 
 
 
ORDER 
 
Entitlement to an apportionment of those amounts of 
additional compensation benefits received by the veteran on 
behalf of the appellant and the veteran's son, [redacted], is 
granted effective December 14, 1987. 
 
An earlier effective date for an apportionment on behalf of 
the veteran's son, [redacted], is denied. 
 
 
 
		 
	CHARLES E. HOGEBOOM 
	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. 
. 
 
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