Citation Nr: 0002340 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 93-17 112A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an effective date prior to May 1, 1992, for an award of an increased apportionment of the veteran's Department of Veterans Affairs disability compensation for the veteran's minor child in the custody of the appellant. REPRESENTATION Veteran represented by: Disabled American Veterans Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and her sister ATTORNEY FOR THE BOARD Amanda Blackmon, Counsel INTRODUCTION The veteran served on active duty from November 1968 to June 1970. The record reflects that the Department of Veterans Affairs (VA) Regional Office (RO), granted the appellant's claim for an apportioned share of the veteran's compensation benefits in an April 1989 decision. In October 1989, the appellant filed a notice of disagreement with this decision, and thereafter filed VA Form 1-9 later that month. The appellant requested a hearing before the RO in this matter. In February 1990, a hearing was scheduled in this matter, in the jurisdiction in which the veteran resided. The RO next issued a statement of the case relative to the issue of the apportionment to the appellant in March 1990. In August 1991, the appellant submitted another hearing request. By letter, dated in September 1991, the RO sought clarification with respect to the appellant's hearing request. In April 1992, the appellant filed a claim for an increased apportionment of the veteran's compensation benefits for the benefit of the minor children in her custody. The veteran was thereafter notified of the appellant's claim in May 1992. The parties were requested to submit financial disclosure reports at that time. In a May 1992 decision, the RO denied the appellant's claim. The appellant had a hearing before the RO in April 1993 concerning the denial of her claim for an increase in the apportioned benefits. A statement of the case was forwarded to the appellant and veteran in July 1993. The record discloses that the appellant's substantive appeal was filed in this matter in August 1993. However, the substantive appeal was misfiled, and the appellant's appeal was consequently dropped. A subsequent review of the claims folders resulted in the location of the appellant's earlier filed substantive appeal, and the appeal was reinstated. In November 1997, following additional evidentiary development, the RO granted the appellant's claim for an increase in apportioned benefits. In January 1998, the appellant filed another claim for an increase in the apportioned share of the veteran's compensation benefits. The RO, in an April 1998 decision, granted an increased apportioned amount of the veteran's benefits. In a June 1998 remand, the Board noted that it was not clear on the basis of the existing record, whether the appellant requested a further increase in apportioned benefits or award of retroactive benefits of the increased apportioned amount to the date of her claim. Further, it was noted that the RO had not issued a supplemental statement of the case in this matter. The requested development having been completed, this matter has been returned to the Board for further appellate review. The RO, in a December 1998 decision, determined that the evidence of record did not warrant an earlier award date for the increased apportionment, nor in the amount of the present apportionment. The Board notes that one of the appellant's children has attained the age of majority and, consequently, would not generally be entitled to receipt of apportioned funds. In that regard, there is no indication that the criteria for recognition of the adult son of the veteran as a "child" for purposes of receipt of VA benefits have been met. FINDINGS OF FACT 1. The veteran has been in receipt of VA disability compensation benefits at the 90 percent rate from November 1972 to the present. 2. The appellant submitted her first claim for an apportionment of the veteran's disability compensation benefits on behalf of then minor children in her custody in September 1987; in a special apportionment decision dated in April 1989, the RO granted an apportionment of the veteran's benefits in the amount of $100.00 for the then minor children. 3. In April 1992, the appellant filed a claim for an increased apportioned share of the veteran's compensation benefits on behalf of the minor children in her custody. 4. An increased in the special monthly apportionment was approved in the amount of $150 of the veteran's compensation benefits, effective May 1, 1992. 5. An increase in the special monthly apportionment was approved in the amount of $300.00 of the veteran's monthly compensation, effective February 1, 1998; this amount was reduced to $150.00, effective August 1999. 6. The veteran's minor child is in the custody of the appellant; the veteran's other son has attained the age of majority and is not a "child" for VA purposes. 7. The rate of apportionment reflects less than one-half of the veteran's compensation award, representing benefits paid to himself, his current spouse, and dependent children. CONCLUSION OF LAW Entitlement to an effective date prior May 1, 1992 for an award of increased apportionment of the veteran's compensation benefits on behalf of the veteran's minor son is not warranted. 38 U.S.C.A. §§ 1115, 5307(a) (West 1991); 38 C.F.R. §§ 3.400, 3.450, 3.451 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board has found that the appellant's claim is well grounded pursuant to 38 U.S.C.A. § 5107, in that her claim is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). This finding is based upon the evidentiary assertions by the parties, and documentary evidence of record regarding the financial status of the parties in interest. Once it has been determined that a claim is well grounded, VA has a statutory duty to assist the appellant in the development of evidence pertinent to the claim. 38 U.S.C.A. § 5107. In this regard, this case was previously before the Board in June 1998, at which time, the case was remanded by the Board to the RO in an attempt to obtain additional evidence. The requested action was undertaken, and the case has now been returned to the Board for further appellate consideration. The Board is satisfied that all relevant and available evidence is of record and the statutory duty to assist in the development of evidence pertinent to the claim has been met. The Board further notes that the procedural requirements pertaining to contested claims has been met. 38 U.S.C.A. §§ 7105(a); 19.100, 19.101, 19.102 (1999). Factual Background Service connection is in effect for multiple disabilities. The combined rating evaluation is 90 percent, effective from November 1972. The veteran was also awarded special monthly compensation under 38 U.S.C.A. § 1114(k), on account of anatomical loss of one foot. By rating action, dated in August 1976, the veteran was awarded total rating based on individual unemployability. The record reflects that the veteran and the appellant were initially married in March 1981. Due to an impediment in the marriage, the veteran and the appellant were again married in December 1984. Birth certificates show the veteran as the father, and the appellant as the mother of two children born in August 1981, and January 1983. The veteran and the appellant were divorced in December 1986. In February 1987, the veteran requested that the RO deduct his monthly benefits in the amount of $500.00, to be forwarded to the appellant. He indicated that this allotment was for the care of his sons. He reported that he and the appellant were divorced, and that the requested withholding/allotment represented his court ordered support payment for his sons. In a subsequent letter, also dated in February 1987, the veteran withdrew his request for a withholding, indicating that he made other arrangements in this regard. In September 1987, the appellant filed a claim for apportionment of the veteran's benefits for the benefit of their two minor children in her custody. In a statement, received in November 1987, the veteran reported debts in the amount of $5,353.12, which included court-ordered support for the appellant in the amount of $500.00. The veteran reported that all of the property was awarded to the appellant in the divorce settlement. He further noted that during the course of his marriage to the appellant, he incurred a lot of debt which he was attempting to settle. He noted that his was the only name on the mortgage, and that the property had been foreclosed following his departure from the familial home. The veteran noted that he was experiencing difficulty financially. He indicated that although he worked, the physical stress on his service- connected right leg disability might require him to discontinue working. The veteran reported that he was unable to secure a consolidation loan because of his credit. In October 1987, the veteran authorized garnishment of his earnings for payment of court ordered support payments and for payment of arrearages in child support payments. The record discloses that the veteran filed for bankruptcy under Chapter 7 in October 1987. In December 1987, the RO denied the appellant's claim for an apportionment of the veteran's compensation benefits. In an October 1988 statement, the appellant reported that she and the veteran were initially married in March 1981, and later remarried in December "1985". She indicated that pursuant to court order, the veteran was to pay $500.00 monthly, toward the support of his minor sons from this marriage. She indicated that the veteran was no longer making payments toward the support of their children. By letters, dated in January 1989, the veteran and the appellant were requested to provide the RO with information relevant to their respective finances. In a statement, which was received by the RO in January 1989, the veteran reported that he was about to lose his home. He indicated that he had many debts, and that several bills were for past due accounts. He reported that there was very little food available for him and his family, and that his vehicle was in great need of repair. The veteran noted that he experienced increased disability associated with his leg, and that he had developed a bulging disc due to the left leg disability. A January 1989 statement from the appellant indicated that she was not presently employed. She reported that the veteran had previously paid child support, but indicated that these payments had discontinued. She indicated that her home had recently been foreclosed, necessitating her moving into her mother's home. She also reported that she received food stamps. In a January 1989 statement, the veteran reported indebtedness totaling $4,342.75. He reported monthly earnings for himself (VA compensation), and his present spouse in the amount of $3,072.00. In an April 1989 decision, the RO granted the appellant's claim for an apportionment of the veteran's benefits. An apportionment in the amount of $100.00 was allowed. It was noted that this amount represented the amount of the additional compensation benefits the veteran received for two dependent children. VA Form, 21-4192, Request For Employment Information In Connection With Claim For Disability Benefits, dated in March 1989, indicated that the veteran had resigned from his position as a mail handler due to problems with his leg. It was noted that the veteran last worked in July 1988. It was noted that the veteran was entitled to receive civil service retirement benefits. The record reflects that the appellant was awarded an increase in the apportionment amount of the veteran's benefits based upon his receipt of an award of vocational rehabilitation benefits, effective September 6, 1990. However, the appellant only received one month's payment since the veteran had received only one month of vocational rehabilitation benefits. In March 1991, the veteran filed a financial disclosure report, VA Form 4-5655, in which he reported that he had been unemployed since 1988. He reported monthly income in the amount of $1,110.20. His monthly expenses totaled $1,980.00. In April 1992, the appellant filed a claim for an increased apportionment of the veteran's benefits. She reported that the veteran did not contribute toward the support of the minor children. She indicated that she was no longer in receipt of social service's benefits as she was employed on a part-time basis. It was noted that food stamps were still being received. The veteran was notified of the appellant's request for an increased apportionment of his compensation benefits by letter dated in May 1992. It was requested that the veteran provide information relative to his finances for consideration in this matter. The appellant was also requested to provide financial information in a May 1992 letter. In a June 1992 statement, the veteran reported monthly earnings in the amount of $1,637.23, with expenses totaling $1,642.00. He reported a total indebtedness of $38,027.67. It was the veteran's contention that an increase in the apportioned amount would create undue financial hardship. The veteran also reported that he experienced increased impairment due to his disabilities. He further reported that his financial status had recently changed following his present wife's relocation to another state. In a June 1992 statement, the appellant reported that she was presently unemployed. She also included information concerning her monthly expenses. In an August 1992 decision, the RO denied the appellant's claim for an increase apportionment of the veteran's benefits. It was noted that an increase in the apportioned amount would create an undue hardship for the veteran. The appellant was afforded a hearing in April 1993. It was reported that the appellant and the veteran were initially married in March 1981. However, there was an impediment to the first marriage, and they were subsequently remarried in December 1984. The veteran reportedly left the appellant in December 1985, and the couple divorced in December 1986. It was noted that in conjunction with the terms of the divorce, the veteran was to pay the appellant $500.00 in monthly child support payments. It was further noted that the veteran last contributed to the financial support of the minor children in February 1989, and that he last communicated, by letter, with the children in 1990. The appellant stated that in accordance with the veteran's wishes, she did not work outside of the home during their marriage. As a result of her absence from the job market, she was not able to secure employment which provided sufficient financial support for her family. She was employed as a school bus driver at that time. The appellant noted that until recently, she was not eligible for receipt of unemployment benefits during the summer months. She previously had to apply for welfare benefits during that period. The appellant noted at the time she initially applied for an apportionment of the veteran's benefits, her daughter resided with her and provided some financial assistance. The appellant's daughter had recently moved out of the appellant's residence, which was alleged to represent changed circumstances that should be considered. Additionally, the appellant indicated that the apportioned benefits had not increased since the time of the initial award in 1989, commensurate with the increased cost of living and additional expenses related to rearing two school-aged children. In support of her claim for an increased apportionment of the veteran's benefits, the appellant provided a more recent financial disclosure statement. The report noted the appellant's net monthly income as $680.00. The appellant also reported the apportionment amount of $100 among her monthly income. The appellant reported assets consisting of an automobile valued as $500.00, and furniture/furnishings valued as $1,000.00. The report documented monthly household and other expenses totaling $2,557.00. With respect to the minor children, the appellant reported expenses in the amount of $1,778.00. She reported indebtedness in the amount of $5,400.00, for which a $25.00 monthly payment was reported relative to one of the appellant's referenced creditors. The appellant's sister testified that she had occasion to observe the appellant and veteran during the course of their marriage. She indicated that she also had an opportunity to observe the appellant following her divorce. In that context, it was noted that the appellant was frequently faced with financial problems, and would borrow money from relatives. She reported that the appellant was presently indebted to her for loans made to the appellant to assist with expenses. By letter, dated in September 1997, the appellant was requested to furnish the RO with a more recent financial disclosure report prior to certification of her appeal to the Board. The veteran was also requested to provide additional financial information by letter, also dated in September 1997. In a September 1997 statement, the appellant provided information concerning her financial status. In that context, she reported her gross monthly income in the amount of $820.00 from her part-time employment. The appellant reported monthly expenses in the amount of $1,361.36, with installment debt reported in the amount of $196.00, for a total of $1,757.36 in monthly expenses. The appellant noted that some payments related to her installment accounts were past due. The veteran did not respond to this request. In a November 1997 decision, the RO granted the appellant's claim for an increase in apportioned benefits. It was noted that this determination was based upon a finding that the appellant demonstrated financial hardship. An apportionment of $150.00 was granted, effective from May 1, 1992. In January 1998, the appellant filed a claim for an increase in the amount of the apportioned benefits. In support of her claim, the appellant reported that she was not working at that time due to surgical treatment she was scheduled to undergo that month. She indicated that she was only entitled to a week's pay due to her part-time status. The appellant provided clinical reports and a medical statement in support of her contentions. In January 1998, the veteran provided a financial disclosure report. He reported net monthly earnings of $399.37, and $1,416.00 in pension benefits for himself. It was noted that the veteran's spouse's net monthly income was $2,826.00. The total monthly income was reported as "$4,581.37." (However, the Board notes that the total monthly income was incorrectly calculated; the correct total is $4,641.37, based upon the information provided.) The veteran reported monthly expenses in the amount of $4,650.00. The veteran incorrectly reported a monthly deficit in the amount of $68.37 due to the miscalculation. The Board notes, however, that the veteran is left with a deficit of $8.63 based upon the information reported. Seven of the installment contract debts reported contained balances below $100.00. None of the reported installment accounts was noted to be past due. The veteran reported a checking account balance in the amount of $47.50. He noted a zero balance in his savings account. In an updated financial disclosure, received in March 1998, the veteran reported the same expenses and amounts therefor as noted in his earlier (January 1998) report. The veteran also reported an increase in monthly expenses due to an increase in automobile insurance in the amount of $231.50, and costs associated with vehicle registration ($224.68) and brake repair ($442.32). In an April 1998 decision, the RO granted the appellant's claim for an increase in apportioned benefits. An apportionment in the amount of $300.00 for the minor children was awarded pursuant to the provisions of 38 C.F.R. § 3.450(a)(ii), effective February 1, 1998. In this regard, it was noted that the evidence demonstrated that the appellant apparently received only 59 percent of his gross wages, which the RO found to be suggestive of some other form of withholding in effect. Additionally, it was noted that the several credit or finance accounts beyond housing, transportation, and school related expenses had been reported by the veteran. It was noted that while both the veteran and the appellant reported a monthly deficit, that hardship had been demonstrated relative to each, the evidence showed that the veteran was not contributing to the support of his minor children in the custody of the appellant. The appellant, in statements dated in July and August 1998, indicated her belief that the increased apportionment should be made retroactive to the date of her original claim, in May 1992. The appellant also provided copies of her wage and earning statements during the period from 1992 to 1997. These wage earning statements reflect total earnings for 1992 ($4,633.17); 1993 ($7,680.35); 1994 ($7,840.91); 1995 ($10,842.79); 1996 ($9,888.74); and 1997 ($10,691.88). In November 1998, the appellant submitted VA Forms 20-5655, Financial Status Report, for the relevant period from 1992 to 1997. In her 1992 financial disclosure report, she reported annual earnings in the amount of $4,633.17. She reported monthly expenses totaling $1,322.00 during this period. Among those itemized expenses were costs associated with rent ($600.00); food ($300.00); utilities and heat ($100.00); telephone ($35.00); transportation ($35.00); laundry ($40.00); clothes ($150.00); and automobile insurance ($62.00). The appellant reported as her only asset a 1985 automobile. She did not indicate the value of the automobile. She reported no other assets or cash holdings. She reported no installment contracts or other debts for this reporting period. In her financial report for 1993, she reported yearly earnings in the amount of $7,680.00. She reported monthly expenses totaling $1,258.00 during this period. Among those itemized expenses were costs associated with rent ($580.00); food ($300.00); utilities and heat ($100.00); telephone ($35.00); transportation ($40.00); laundry ($40.00); clothes ($150.00); and automobile insurance ($62.00), which totaled $1,307.00. The appellant reported a 1985 automobile as her only asset. She did not indicate the value of the automobile. She reported no other assets or cash holdings. She reported a monthly installment debt of $499.00, with a monthly payment of $51.00. There were no past due amounts associated with this account. In her financial report for 1994, the appellant reported yearly earnings in the amount of $8,734.93. She reported monthly expenses totaling $1,362.00 during this period. Among those itemized expenses were costs associated with rent ($600.00); food ($300.00); utilities and heat ($125.00); telephone ($35.00); transportation ($45.00); laundry ($40.00); clothes ($150.00); and automobile insurance ($67.00). The appellant reported a 1982 automobile as her only asset. She did not indicate the value of the automobile. She reported no other assets or cash holdings. She reported no installment debts for this period. In her financial report for 1995, she reported yearly earnings in the amount of $10,842.00. She reported monthly expenses totaling $1,112.00 during this period. Among those itemized expenses were costs associated with rent ($455.00); food ($325.00); utilities and heat ($100.00); telephone ($45.00); transportation ($60.00); laundry ($60.00); and automobile insurance ($67.00). The appellant reported as her only asset a 1982 automobile. She did not indicate the value of the automobile. She reported no other assets or cash holdings. She reported installment debts totaling $2,600.00, with monthly payments in the amount of $130.00. There were no past due amounts associated with these accounts. In her financial report for 1996, the appellant reported yearly earnings in the amount of $9,888.74. She reported monthly expenses totaling $1,282.00 during this period. Among those itemized expenses were costs associated with rent ($470.00); food ($325.00); utilities and heat ($100.00); telephone ($50.00); transportation ($60.00); laundry ($60.00); clothing ($150.00); and automobile insurance ($67.00). The appellant reported as her only asset a 1982 automobile. She did not indicate the value of the automobile. She reported no other assets or cash holdings. She reported installment debts totaling $2,600.00, with monthly payments in the amount of $131.00. There were no past due amounts associated with these accounts. Finally, in her financial report for 1997, the appellant reported yearly earnings in the amount of $10,691.88. She reported monthly expenses totaling $1,432.00 during this period. Among those itemized expenses were costs associated with rent ($620.00); food ($325.00); utilities and heat ($100.00); telephone ($50.00); transportation ($60.00); laundry ($60.00); clothing ($150.00); and automobile insurance ($67.00). The appellant reported as her only asset a 1982 automobile. She did not indicate the value of the automobile. She reported no other assets or cash holdings. She reported installment debts totaling $2,275.00, with monthly payments in the amount of $232.00. There were no past due amounts associated with these accounts. The appellant also provided a financial report for 1998, in which she reported yearly earnings in the amount of $11,056.68. She reported monthly expenses totaling $1,811.33 during this period. Among those itemized expenses were costs associated with rent ($631.20); food ($325.00); utilities and heat ($100.00); telephone ($50.00); transportation ($60.00); laundry ($60.00); clothing ($150.00); automobile insurance ($122.00); and car payment ($313.13). The appellant reported as her only asset a 1993 automobile. She did not indicate the value of the automobile. She reported no other assets or cash holdings. She reported installment debts totaling $12,404.53, with monthly payments in the amount of $469.23. There were no past due amounts associated with these accounts. In a financial disclosure report for the year 1998, the veteran reported that his household consisted of himself, his wife, and one teenage dependent. He reported monthly expenses for rent ($711.00); food ($600.00); utilities and heat ($200.00); and telephone ($125.00). The veteran no assets or cash holdings. He also reported no installment debts. In an attached statement, the veteran indicated that he was unable to provide financial information for the periods requested. He noted that he was, during that time, married to another individual, and that their income consisted of his compensation benefits and wages. He reported that he began working for his present employer in 1993, and that most of the billing statements covering the requested period were lost or discarded. He indicated that he was able to recall that he had gross earnings in the amount of $706.41. He reported deductions in the amount of $383.35; however, this amount was apparently miscalculated, and should reflect deductions in the amount of $350.52. He also reported compensation benefits in the amount of $1,230.80. The veteran reported monthly gross earnings for his spouse in the amount of $1,770.50, with net earnings of $1,296.82. (The Board notes that with the reported $565.70 in deductions, the veteran's spouse's monthly net earnings should be $1,204.80.) He reported the total monthly income as "$4,591.14." However, the Board is unable to discern how this amount was calculated based upon the information provided. The veteran reported monthly expenses in the amount of total monthly expenses in the amount of $4,590.00. Among the itemized expenses were costs associated with mortgage ($711.00); automobile payment #1 ($640.00) and payment #2 ($674.00); Sears account ($150.00); Dillards account ($100.00); Visa account ($50.00); Valas account ($134.00); Fingerhut account ($91.00); "Loan" ($100.00); telephone ($125.00); utilities ($200.00); Levitz account ($90.00); US Direct loan ($80.00); insurance ($195.00); 7th Avenue account ($35.00); chiropractic service ($232.00); gas ($200.00); veterinarian ($75.00); exterminator ($38.00); food ($400.00); clothing ($50.00); bus fare ($30.00); IRS payment ($100.00); state tax payment ($50.00); and "miscellaneous emergencies ($40.00). The veteran reported that his household earnings presently consist only of his earnings. He noted that his wife sustained an injury to her foot, and was unable to work at that time. He also reported that there are "three dependents in [his] household," and noted that he was "married with one dependent." The veteran provided no other financial information, nor information relevant to the requested periods. In a December 1998 rating action, the RO determined that while the evidence demonstrated periods during which the appellant's expenses exceeded her income during the relevant period, the supplemental evidence of record showed that an increase in the apportioned amount would result in undue hardship for the veteran. Accordingly, the RO determined that an earlier increase in the apportioned amount was not warranted. It was further the finding of the RO that the evidence presented did not warrant further increase in the amount of the apportionment award. The special apportionment decision of April 1998 was affirmed. Analysis To summarize, the RO determined, in April 1989, that the evidence presented demonstrated that the veteran was not reasonably discharging his responsibility to provide for the support of the minor children in the custody of the appellant, and awarded an apportionment in the amount of $100.00 of the veteran's compensation benefits to the appellant. The record further reflects that the amount of the apportioned benefits was subsequently increased to $150.00 based upon demonstrated hardship, effective May 1, 1992. The apportioned amount was again increased to $300.00, effective February 1, 1998. In this case, the Board requested that the appellant provide clarification regarding the specific nature of her claim. In that regard, it is essentially maintained by the appellant that the increase in the apportioned share of the veteran's compensation benefits should be made retroactive to May 1992. As indicated, however, one of the subject children born of the union between the veteran and the appellant has now attained the age of majority. Accordingly, the appellant's claim is limited to benefits relative to the minor child in her custody. Applicable law allows for an apportionment of a veteran's compensation benefits. Without regard to any other provision regarding apportionment where hardship is shown to exist, pension, compensation, emergency officers' retirement pay, or dependency and indemnity compensation may be specially apportioned between the veteran and his or her dependents or the surviving spouse and children on the basis of the facts in the individual case as long as it does not cause undue hardship to the other persons in interest, except as to those cases covered by § 3.458(b) and (c). In determining the basis for special apportionment, consideration will be given such factors as: Amount of Department of Veterans Affairs benefits payable; other resources and income of the veteran and those dependents in whose behalf apportionment is claimed; and special needs of the veteran, his or her 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 U.S.C.A. § 5307(a); 38 C.F.R. § 3.450(a)(1)(ii). Where hardship is shown to exist, a veteran's compensation may be specially apportioned on the basis of the facts in the individual case as long as it would not result in undue hardship to the other parties in interest. 38 C.F.R. § 3.451 (1997). The provisions of 38 U.S.C.A. § 1115 set the amounts payable for having dependents. The effective date of an original claim for apportionment will be in accordance with the facts found. On other than original claims for apportionment, the effective date of the award will be from the first day of the month following the month in which the claim is received, except that where payments to him/her have been interrupted, the apportionment will be effective the day following the date of the last payment if a claim for apportionment is received within one year after that date. 38 C.F.R. § 3.400(e)(1). Following a considered review of the record, the Board finds that there is no legal basis upon which to assign an effective date prior to May 1992 for an award of an increased apportioned share of the veteran's compensation benefits. The law is clear that on other than original claims for apportionment, as here, the effective date of the award will be the first day of the month following the month in which the claim was received. In this instance, the appellant filed her original claim for apportionment benefits in December 1987. A decision with respect to this claim was issued in April 1989, and granted the appellant apportioned benefits in the amount of $100.00 for the then minor children in her custody. Following the appellant's April 1992 claim, an increase in the apportioned share of the veteran's benefits was awarded in a November 1997 decision. As that claim was not an original claim, the effective date of the award was properly May 1, 1992, the first day of the month following the month in which the claim was received. Likewise, the effective date of the subsequent increase in apportioned benefits, based upon the January 1998 claim, was February 1, 1998. The Board has carefully and thoroughly reviewed the record in this case. However, there is simply no legal basis upon which to assign an effective date for an increased apportioned share of the veteran's compensation benefits, prior to May 1, 1992. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim should be denied on the basis of the absence of legal merit). Accordingly, the Board concludes that the appellant is not entitled to an apportionment of the veteran's compensation benefits on behalf of the minor child prior to May 1, 1992. ORDER Entitlement to an apportionment to the appellant of $150.00 per month prior to May 1, 1992 is denied. Deborah W. Singleton Member, Board of Veterans' Appeals