BVA9508421 DOCKET NO. 92-14 790 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to an increase in the apportionment of the veteran's disability compensation for his children. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran had active service from July 1969 to February 1972 and from May 1973 to May 1975. An appeal has been taken from an October 1990 decision by the Department of Veterans Affairs (VA) Regional Office, Salt Lake City, Utah, increasing the apportionment of the veteran's disability compensation for his children from $300 per month to $350 per month. The appellee is the veteran's former spouse, [redacted], and the custodian of the children. The case was remanded by the Board in April 1994 for development of the evidence. CONTENTIONS OF THE PARTIES TO THE APPEAL The veteran contends, in substance, that the apportionment should be no more than $100 for his son, [redacted], and $75 per month for his son, [redacted], since anymore than that would cause a financial hardship upon the veteran and his new wife and child. It is maintained that since [redacted] has married again, she and her new husband should bear the bulk of the responsibility for the veteran's sons because they have custody of them. The veteran's representative has asked that the veteran be afforded another opportunity to submit a financial report to substantiate financial hardship since he has a psychiatric condition that is 100 percent disabling. [redacted] contends that the increase in the amount of the apportionment is warranted since she finds it very difficult to manage financially with the cost of living continuously rising. 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 increase in the apportionment of the veteran's disability compensation for his children is in order. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office to the extent possible. 2. The veteran has established service connection for several conditions, including a psychiatric disorder which has been rated 100 percent disabling since June 1988. 3. In March 1986, the veteran's former spouse, [redacted], was awarded an apportionment of $60 per month ($30 each) for the veteran's children, [redacted], born in September 1972 and [redacted], born in April 1976, who were in her custody. In January 1989, the apportionment was increased to $300 per month. 4. In July 1990, [redacted] submitted a claim for an increase in the apportionment. She reported income of $1,219 per month and monthly expenses of $1,391. She later submitted a school attendance form reflecting that [redacted] would be in high school until May 1994. 5. In October 1991, [redacted] indicated that although she had remarried in June 1991, she was no longer employed. She stated that she was a full-time nursing student and would not graduate until March 1993. She reported that the family income consisted of her husband's gross weekly wage of $370 ($1,480 per month). She listed monthly expenses of $1,750. 6. In June 1994, the regional office asked the veteran and [redacted] to provide financial information. No response was received from either party. 7. The evidence indicates that there is financial hardship on the part of the veteran's children. The evidence does not establish that the increase in the apportionment of the veteran's disability compensation would cause him undue financial hardship. CONCLUSION OF LAW The increase in the apportionment of the veteran's disability compensation for his children from $300 to $350 per month is warranted. 38 U.S.C.A. § 5307 (West 1991); 38 C.F.R. § 3.451 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that it has found the veteran's claim to be "well grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, the Board finds that he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. In this regard, the record reflects that in August 1990, the regional office sent a letter to the veteran asking that he provide financial information and no response was received. The record indicates that the letter was sent to an incorrect address and the veteran may not have received the letter. However, as noted previously, in June 1994, pursuant to the April 1994 remand by the Board, the veteran was again asked by the regional office to provide financial information and the request was sent to his current address of record. No response was received from the veteran. Accordingly, the Board believes that the veteran has had an adequate opportunity to provide the requested financial information and that further development in this case is not warranted. The record reflects that the veteran has established service connection for several conditions, including a psychiatric condition, rated 100 percent disabling since June 1988. The veteran's total award, which included an additional allowance for two children, was $1,649 as of July 1990. The record reflects that the veteran and his wife, [redacted], were divorced in November 1979. They had two children, [redacted], born in September 1972, and [redacted], born in April 1976. In March 1986, [redacted] was awarded an apportionment of $60 per month ($30 each) for the veteran's children who were in her custody. In January 1989, the apportionment was increased to $300 per month. In July 1990, [redacted] submitted a claim for an increase in the apportionment of the veteran's disability compensation for his two children. She reported income of $1,219 per month and monthly expenses of $1,391. She later submitted a school attendance form reflecting that [redacted] would be in high school until May 1994. In a special apportionment decision dated in October 1990, the amount of the apportionment was increased to $300 per month. In October 1991, [redacted] indicated that she had remarried in June 1991 and was no longer employed. She related that she was a full-time nursing student and would not graduate until March 1993. She listed only her current husband's income, consisting of gross wages of $370 per week or $1,480 per month. She listed monthly expenses of some $1,750. Where the veteran is not living with his spouse or his children are not in his custody, his compensation or pension may under certain circumstances be apportioned. 38 U.S.C.A. § 5307. Generally, where hardship is shown to exist, compensation or pension may be specially apportioned between the veteran and his 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 veteran or other persons in interest. 38 C.F.R. § 3.451. In this particular case, when the appellant applied for an increase in the apportionment of the veteran's disability compensation for his children in July 1990, she listed income of some $1,219 monthly consisting of her wages of $919 monthly plus the VA apportionment of $300 monthly. She reported monthly expenses of some $1,391. Thus, financial hardship on the part of the children was demonstrated at that time. In her October 1991 statement, she indicated that she was no longer employed and she listed her current husband's income of $370 per week or $1,480 per month as the only family income. That amount, when added to the increased apportionment of $350 per month, would total $1,830 per month or somewhat more than her reported monthly expenses of $1,750. However, her current husband's salary was his gross income rather than the net income per month. Thus, it appears that there remained a financial hardship on the part of the veteran's children. The veteran has not responded to a request from the VA regional office for financial information and the total amount of his income and his monthly expenses are not apparent at this time. However, the veteran's disability compensation based on his service-connected condition amounts to a considerable sum each month. In the Board's judgment, the evidence of record is insufficient to establish that the increase in the amount of the apportionment of the veteran's disability compensation would result in any undue financial hardship on his part. After carefully reviewing the entire record in this case, the Board concludes that the increase in the amount of the apportionment of the veteran's disability compensation from $300 per month to $350 per month is in order. 38 U.S.C.A. § 5307; 38 C.F.R. § 3.451. Accordingly, it follows that favorable action in connection with the veteran's appeal is not warranted. ORDER Entitlement to an increase in the apportionment of the veteran's disability compensation for his children is established. The appeal is denied. WAYNE M. BRAEUER 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.