Citation Nr: 18132318
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 11-14 952A
DATE:	September 6, 2018
ORDER
Entitlement to an apportionment of the Veteran’s VA disability compensation is denied.
FINDING OF FACT
The Veteran is reasonably discharging his responsibility for support for his dependents, and the evidence fails to establish the Veteran’s dependents experience hardship due to inadequate financial support from the Veteran.
CONCLUSION OF LAW
The criteria for an apportionment of the Veteran’s VA compensation benefits have not been met.  38 U.S.C. § 5307 (2012); 38 C.F.R. §§ 3.450, 3.451 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 apportionment decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania, that denied the Appellant’s claim for an apportionment of the Veteran’s VA disability compensation.  The Appellant is the Veteran’s former spouse and custodial parent of their sons, J.B. and J.B.
Review of the claims file reveals contested claims procedures have been followed in this case.  Both parties have been advised of the applicable law and regulations and have been sent a copy of the May 2011 statement of the case and the June 2018 subsequent supplemental statement of the case.  The parties have been provided ample opportunity to submit evidence regarding this appeal with full notice of the requirements to establish entitlement to an apportionment.  The Board remanded this matter in October 2014 specifically for this purpose.  The record reflects the Agency of Original Jurisdiction (AOJ) has complied with the Board’s remand instructions in this regard.  Yet, neither party has responded to the request for additional evidence.  Thus, the Board will proceed to adjudicate the merits of this appeal based on the evidence of record.
All or part of a veteran’s VA benefits may be apportioned on behalf of the veteran’s dependents if they are not residing with the veteran and the veteran is not reasonably discharging his or her responsibility for support, otherwise known as general apportionment.  38 U.S.C. § 5307(a)(2); 38 C.F.R. § 3.450(a)(1)(ii).  It is not necessary for the claimant to establish the existence of hardship to obtain a general apportionment under 38 C.F.R. § 3.450, but no apportionment will be made where the veteran is providing for dependents.  38 C.F.R. § 3.450(c).
Here, the record establishes the Veteran has been court ordered to pay $880.00 per month in child support for his sons.  In a November 2009 written statement, the Appellant reported she was “barely receiving $800.00 per month” from the Veteran.  Court records show the Veteran was $80.00 in arrears at one point in time, but there is insufficient evidence of record to establish the Veteran is not reasonably discharging his duty for support for his dependents, especially considering the Appellant’s initial statement that indicates she was receiving $800.00 per month from the Veteran.  The Board acknowledges the Appellant subsequently reported the Veteran stopped paying child support.  In October 2014, the Board remanded this matter to provide the Appellant the opportunity to submit evidence regarding the Veteran’s failure to pay child support; however, as previously noted, the Appellant failed to respond to the AOJ’s request for this evidence.  Thus, the Board finds the Veteran is reasonably discharging his responsibility for support for his dependents, as the evidence currently of record suggests he is in reasonable compliance with his court-ordered child support obligation.  As a result, a general apportionment is not warranted in this case.
VA regulations provide for a special apportionment of VA benefits between the veteran and his or her dependents based on the facts in the individual case where hardship is shown to exist, if it does not cause undue hardship to the other persons in interest.  38 C.F.R. § 3.451.  In determining the basis for a special apportionment, consideration will be given to such factors as: 1) the amount of VA benefits payable; 2) other resources and income of the veteran and those dependents in whose behalf apportionment is claimed; and 3) special needs of the veteran, his or her dependents, and the apportionment claimants.  Id.
In this regard, the Board finds the evidence of record fails to establish the Veteran’s dependents experience hardship due to inadequate financial support from the Veteran.  In April 2011, the Appellant submitted a VA Form 21-0788 (Information Regarding Apportionment of Beneficiary’s Award).  This is the only evidence regarding her financial situation.  The Appellant reported $970.00 in monthly expenses, but she did not provide any information regarding her income.  The Board finds the limited information regarding the Appellant’s financial situation is insufficient to establish the Veteran’s dependents experience hardship due to lack of financial support from the Veteran.  The Board notes the Veteran’s court-ordered child support obligation of $880.00 per month accounts for nearly all the expenses reported by the Appellant without any consideration of her income.  The Board recognizes the Appellant may not have income, but this is not established by the evidence of record.  The Board remanded this matter in October 2014 and asked the AOJ to request additional information regarding the Appellant’s financial situation, but, again, she failed to respond these requests.  As the April 2011 VA Form 21-0788 contains insufficient evidence to make an informed decision regarding hardship, the Board finds the evidence fails to establish the Veteran’s dependents experience hardship due to inadequate financial support from the Veteran.  Thus, a special apportionment is also not warranted in this case.
In sum, the Board finds that the Veteran is reasonably discharging his responsibility for support for his dependents, and that the evidence fails to establish his dependents experience hardship due to inadequate financial support.  As the requirements for neither a general nor special apportionment have been met, the Appellant’s apportionment claim must be denied.

 
M. HYLAND
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. S. Kyle, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency

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