Citation Nr: 0007408 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-07 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether the appellant is entitled to an apportionment of the veteran's Department of Veterans Affairs pension benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nicholas M. Auricchio, Associate Counsel INTRODUCTION The veteran served on active duty from April 1974 to February 1975. The appellant is the veteran's separated spouse. This appeal arose from a November 1997 special apportionment decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. FINDINGS OF FACT 1. The appellant is the legal spouse of the veteran and they have been living separate and apart for many years. 2. The veteran does not provide support to the appellant. 3. Apportionment of the veteran's VA pension for the benefit of the appellant would cause financial hardship to the veteran. CONCLUSION OF LAW An apportionment of the veteran's VA pension benefits for the benefit of the appellant is not warranted. 38 U.S.C.A. §§ 1521, 5107, 5307 (West 1991); 38 C.F.R. §§ 3.23, 3.450, 3.451, 3.458 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a); that is, she has presented a claim that is plausible. Accordingly, the Board finds that all relevant facts have been properly developed, and that the duty to assist, as mandated by 38 U.S.C.A. § 5107(a), has been satisfied. The evidence indicates that the appellant has been estranged from her spouse for over seventeen years. The appellant asserts that the veteran has not provided her with any financial support during this period of separation. She claims that she is suffering from financial hardship and requests apportionment. The veteran receives $673.00 a month in VA pension benefits, and $481.00 a month in Social Security income. He is residing at his mother's residence. His itemized expenses total $854.39. He is also seriously disabled, has been found to be entitled to aid and attendance by VA, and he is on kidney dialysis. The veteran, in a statement received in November 1997, indicated that he did not agree with the proposed apportionment. He stated that his son was over 21 years old and that he had taken care of him since he was 3 years old. He indicated that, at that time, he had no contact with his wife and that they had been separated for 15 years. He reported receiving no support from his wife during the time their son was a minor. He had kidney failure and was on kidney dialysis that required all his income to live on. In a statement, received in June 1998, from the manager of the Toddington Heights Apartments, the appellant was reported to be having problems paying her monthly rent. In a June 1998 electric bill, the veteran's monthly charges were $38.41 with a prior balance of $2.60. The appellant clarified her expenses in a statement received in June 1998. At that time, her current rent was $375 and would increase to $395 in August 1998. She stated that she had no car and had to pay someone to take her to and from work at a cost of $20 per week. She indicated that she had a $32 phone bill every month. She received no food stamps or other assistance, and purchased her food as best she could. She ate little and did not buy clothes. The appellant also did not have entertainment or recreation money. Her main problem was that she could not chew her food as all her teeth had been pulled, and she could not afford false teeth. The appellant reported having no savings or other assets. At her January 2000 travel Board hearing, the appellant testified that she has been employed for two years with a temporary service. Her current income before taxes was $214. She sometimes worked either three or four days a week, and she was off four times a year for two weeks at a time. When she was working she earned approximately $800 a month. The appellant had no other source of income. She had no transportation and had to pay for a ride to work. She had no health insurance and she could not afford to have her teeth fixed. The appellant testified that she spent about $150 a month on food; $20 a week for transportation; $30 a month for cable; and $440 a month for rent. At the end of the month, she had about $100 left. However, her main problem was that she needed to have her teeth fixed so she could crew her food. When the appellant filed her tax return the previous year, she reported earning an income of $10,000. The appellant's apartment lease agreement shows that she pays $415 a month in rent. The rental agreement was completed in April 1999. A December 1999 telephone bill indicates the appellant's past due amount was $28.48 and her total amount due was $63.28. A December 1999 electric bill shows that the veteran had current charges of $46.21 and a past balance of $5.81. In a refund anticipation loan agreement from the Security Finance Corporation of Tennessee, the appellant was noted to have borrowed $200 in December 1999. She needed to borrow this money because her temporary agency shut down for two and a half weeks in December 1999. A Trans-O-Gram, received in January 2000, from the appellant's cable company indicates that her total charges were $60.94 with a past due amount of $26.32. In a statement, received in January 2000, John Brooks indicated that the appellant had been riding with him for two years and paid him $20.00 a week. He stated that sometimes she could not afford to pay him because of bills. In a statement, receiving in January 2000, the appellant indicated that her regular pay is $243 a week. The maximum annual rates of improved pension with aid and attendance shall be the amounts specified in 38 U.S.C.A. § 1521, as increased from time to time under 38 U.S.C.A. § 5312; 38 C.F.R. § 3.23(a). Each time there is an increase under 38 U.S.C.A. § 5312, the actual rates will be published in the "Notices" section of the Federal Register. The maximum rates of improved pension are reduced by the countable annual income of the veteran and his spouse. 38 U.S.C.A. § 1521. 38 C.F.R. § 3.23(b). A veteran's spouse who resides apart from the veteran and is estranged from the veteran may not be considered the veteran's dependent unless the spouse receives reasonable support contributions from the veteran. 38 C.F.R. § 3.23(d)(1). A veteran's annual income includes his annual income, and the annual income of the veteran's dependent spouse. 38 C.F.R. § 3.23(d)(4). Under the relevant provisions of the laws, VA benefits payable on account of a veteran may be apportioned on behalf of a spouse not residing with him/her if the veteran is not reasonably discharging his responsibility for his spouse's support. See 38 U.S.C.A. § 5307; 38 C.F.R. § 3.450. Where hardship is shown to exist, pension benefits may be specially apportioned between the veteran and his dependents 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. 38 C.F.R. § 3.451. In determining the basis for special apportionment, consideration will be given to such factors as the amount of VA 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 dependents, and the apportionment claimants. Id. 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 the apportionee. 38 C.F.R. § 3.458. Having considered the facts of this case and the applicable rules and regulations, the Board finds that an apportionment of the veteran's pension benefits is not warranted. Although the Board finds that the appellant is experiencing financial hardship, it is clear that apportionment of any of the veteran's VA benefits would also create undue hardship for him. In this respect, if the appellant were granted an apportionment of the veteran's pension benefits, her income would have to be counted as countable income for determining the total VA benefit and this would result in there being no benefit to either the appellant or the veteran. To reduce the veteran's VA pension benefits to zero would be detrimental to the veteran because his only other income is Social Security of $481.80. In addition, the veteran is experiencing severe medical problems. The law does not permit apportionment of VA benefits when either the equities are such that apportionment would cause undue hardship to the veteran or the total benefits payable to the disabled person would not permit payment of reasonable amount to the apportionee. As such is the case here, the Board thus concludes that entitlement to apportionment of VA pension benefits is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an apportionment of the veteran's VA benefits, for the benefit of the appellant, is denied. DEREK R. BROWN Member, Board of Veterans' Appeals