BVA9501548 DOCKET NO. 92-06 688 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an increased apportionment of the veteran's compensation benefits on behalf of his minor child. ATTORNEY FOR THE BOARD Raymond F. Ferner, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a special apportionment decision of the Department of Veterans Affairs (VA) Regional Office in Newark, New Jersey, (RO) which granted an apportionment of the veteran's compensation benefits on behalf of his minor child in the appellant's custody. The veteran, who had active service from June 1968 to June 1970, did not express disagreement with that decision, but the appellant expressed disagreement and requested an increase in the apportioned amount. The case was initially received at the Board in May 1992 and remanded for further development to the RO in December 1992. The case was returned to the Board in December 1994. CONTENTIONS OF APPELLANT ON APPEAL The appellant essentially contends that the RO was incorrect in not granting a larger apportionment of the veteran's compensation benefits on behalf of his minor child in her custody. She asserts that the minor child should receive an amount comparable to monthly child support since the veteran has not contributed in any way to the child's support. She relates that an apportionment of $20 a month is an insufficient amount to provide food on even a weekly basis or provide shoes for the child. Therefore, a favorable determination has been requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed all of the evidence of record. Based on a review of the evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for an increased apportionment of the veteran's compensation benefits on behalf of his minor child. FINDINGS OF FACT 1. The veteran's daughter, [redacted], is not residing with him. 2. The veteran is not reasonably discharging his responsibility for his daughter's support. 3. An apportionment of $20 per month of the veteran's compensation benefits does not cause him financial hardship. 4. An apportionment in excess of $20 per month of the veteran's compensation benefits would cause him undue financial hardship. CONCLUSION OF LAW The requirements for an apportionment of the veteran's compensation benefits in excess of $20 per month have not been met. 38 U.S.C.A. §§ 5107, 5307 (West 1991); 38 C.F.R. §§ 3.102, 3.450, 3.451 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSION The basic facts in this case are uncontroverted. While the veteran and the appellant were never married, the veteran does not dispute that [redacted] is his daughter. He also does not dispute that his daughter lives with the appellant and that he is not providing any support to the appellant on behalf of his minor child. The RO has indicated that the veteran's award of compensation benefits includes $20 per month as additional compensation by virtue of the veteran claiming [redacted] as a dependent. Based on this information, the Board finds that the basic requirements for apportionment of the veteran's compensation benefits set forth in 38 U.S.C.A. § 5307(a)(2) (West 1991) and 38 C.F.R. § 3.450(a)(1)(ii) (1993) are met. A special apportionment decision dated November 1991 granted the appellant an apportionment of $20 per month, and the veteran does not appear to have disputed or otherwise disagreed with this award. At the time of that decision, the veteran had not responded to the RO's request for information concerning his monthly income and expenses, and the appellant had reported that her monthly income exceeded her monthly expenses by $270. Pursuant to the Board's December 1992 remand, additional financial information was requested from both the appellant and the veteran, and both parties provided the requested information. (The Board construes the veteran's response to the request for financial information at this point as effectively expressing disagreement with any further apportionment of his compensation award.) Financial information provided by the veteran discloses that his income consists solely of his VA compensation and that his monthly expenses exceed his monthly income by $94 in information provided in February 1993, and by a considerably large amount in information provided in August 1993. Information provided by the appellant in January 1993 indicates that her monthly income is exactly equal to her monthly expenses, and in information provided in August 1993, the appellant reported that her monthly income exceeded her monthly expenses by approximately $1. Based on the financial information provided by the parties, the Board finds that any further apportionment of the veteran's compensation award beyond that which he receives by virtue of claiming his daughter as a dependent would cause him undue financial hardship. In this regard, the Board notes that there is a significant disparity in the parties' income, with the July 1994 special apportionment decision indicating that the appellant's monthly income exceeded the veteran's monthly income by over $350. Also, financial information provided by the veteran indicated that he was in arrears in amounts owed for rent and utilities. Accordingly, an increased apportionment beyond that amount which the veteran receives by claiming his daughter as a dependent for his VA compensation award is not warranted. ORDER An increased apportionment of the veteran's VA compensation benefits on behalf of his minor child is denied. WARREN W. RICE, JR. 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.