Citation Nr: 0004513	
Decision Date: 02/22/00    Archive Date: 02/28/00

DOCKET NO.  94-22 113	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in No. Little 
Rock, Arkansas


THE ISSUE

Entitlement to an apportionment of the veteran's disability 
compensation benefits  for the period from March 1994 to July 
1998.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Salari, Associate Counsel



INTRODUCTION

The veteran had active duty service from September 1973 to 
September 1977.  The appellant is his former spouse.

This appeal was initially before the Board of Veterans' 
Appeals (Board) from a March 1994 special apportionment 
decision from the Department of Veterans Affairs (VA) 
Regional Office (RO) in No. Little Rock, Arkansas.  The Board 
remanded this claim for further development by means of a 
December 1997 order.  The case is now returned to the Board 
for a final decision.


FINDINGS OF FACT

1.  In March 1994, the appellant filed a claim for 
apportionment of the veteran's disability compensation on 
behalf of the veteran's two legitimate children, T.S.H., and 
R.D.H.; T.S.H. was born in February 1977, and R.D.H. was born 
in July 1980.

2.  R.D.H., the youngest child, turned 18 in July 1998.  

3.  The veteran did not reasonably contributed to his 
children's support and expenses.

4.  Undue hardship would not result to the veteran by 
apportionment of $50 of his monthly disability compensation 
for the benefit of his children for the period from March 
1994, date of claim, until July 1998, date the youngest child 
reached 18 years of age.


CONCLUSION OF LAW

The criteria for apportionment of the veteran's disability 
compensation in the amount of $50 per month for the benefit 
of his children for the period from March 1994 to July 1998 
are met.   38 U.S.C.A. §§ 1114, 5307, 7105A (West 1991); 38 
C.F.R. §§ 3.57, 3.400, 3.450, 3.451, 3.452, 3.458, 20.502 
(1999).
            
                                                                                                                                
REASONS AND BASES FOR FINDINGS AND CONCLUSION

In March 1994, the appellant filed a claim for apportionment 
of the veteran's disability compensation for the benefit of 
the veteran's two children who were in the appellant's 
custody.  One child (T.S.H.) was born in February 1977, and 
the second child (R.D.H.) was born in July 1980.  Thus, 
T.S.H. reached the age of 18 in February 1995, and R.D.H. 
reached the age of 18 in July 1998.  (The term "child" 
includes a legitimate child of the veteran who is unmarried 
and under the age of 18.  38 C.F.R. § 3.57.)

On her VA Form 9, dated in May 1994, the appellant reported 
that she was a single parent, living on a GS-05 income.  She 
also reported that the veteran had made no payments toward 
his child support obligation.  She indicated that even $50 
per month would assist her in caring for her two children.  
The Board notes that a court decree, dated in 1981, required 
the veteran to pay the appellant child support in the amount 
of $200 per month.  The record indicates that the veteran has 
been in receipt of a 20 percent disability rating for the 
period in question (1994-1998).       

Pursuant to the Board's remand order, in letters dated in 
January 1998, the RO requested that the veteran and the 
appellant each submit financial status information, to 
include total monthly household income, expenses, and assets, 
as well as the number of dependents that each supports.  The 
RO also requested that the veteran indicate whether and how 
much child support he was providing for his children (not 
living with him), and to explain any hardship that may result 
from apportionment of his benefits.  Unfortunately, neither 
party responded to the RO's requests for information.  

The Board notes that all or any part of a veteran's 
compensation award may be apportioned if the veteran's spouse 
and/or children are not residing with the veteran and the 
veteran is not discharging his or her responsibility for the 
spouse or children's support. 38 U.S.C.A. § 5307; 38 C.F.R. § 
3.450(a)(1)(ii).  A veteran's benefits are not apportioned 
unless and until a claim is filed.  38 C.F.R. § 3.458 (g); 
see also 38 C.F.R. § 3.400.  Where hardship is shown to 
exist, compensation may be specially apportioned between the 
veteran and his or her 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.

Factors to be considered include the amount of VA benefits 
payable, other resources and income of the parties in 
interest, and any special needs of the respective parties. 
Id.  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.  Rates of apportionment of disability 
compensation, service pension or retirement pay will be 
determined under 38 C.F.R. § 3.451 (the factors are noted 
above). 38 C.F.R. § 3.453.  The veteran's benefits will not 
be apportioned where the total benefits payable to the 
disabled person does not permit payment of a reasonable 
amount to any apportionee.  38 C.F.R. § 3.458.    

The Board has considered the evidence of record and finds 
that apportionment of the veteran's disability compensation 
is warranted.  As previously mentioned, the appellant has 
indicated that the veteran has failed to properly discharge 
his duties to pay for the support of his children, and no 
evidence to the contrary has been presented.  The veteran has 
been provided with the necessary opportunity to provide 
information as to his financial status and any hardship that 
may result from apportionment; however, he has failed to do 
so.  

In this regard, the Board notes that 38 U.S.C.A. § 7105A(b) 
requires that in simultaneously contested claims, the 
substance of an appeal be communicated to the other parties 
in interest and a period of thirty days be allowed for filing 
a brief or argument in answer thereto.  38 U.S.C.A. 
§ 7105A(b).  The relevant provisions of 38 C.F.R. § 20.502  
provide that notice of an appeal by a contesting party is 
given by sending a copy of the substantive appeal to all 
contesting parties, and providing a period of 30 days from 
the date of the mailing of the substantive appeal for filing 
a brief or argument in answer.  38 C.F.R. § 20.502.  The 
evidence of record does not show that the RO provided the 
veteran with the actual copy of the substantive appeal.  
However, the substance of her appeal (that veteran has failed 
to discharge his duties to pay child support) has been 
communicated to the veteran (see Board's December 1997 
remand), and he has been provided with an opportunity to 
respond.  In particular, in January 1998, he was asked to 
indicate whether he was providing support for his children 
and whether any hardship would occur if his benefits were 
apportioned.  However, he did not respond.  The Board thus 
finds that he was afforded the necessary due process.  

Given the appellant's assertions that the veteran has failed 
to properly discharge his duties to pay child support, as he 
was required to do by law, and given that the veteran has 
provided no evidence which would preclude apportionment, the 
Board finds that the appellant's claim should be awarded.  In 
this regard, the Board notes the appellant's failure to 
respond to a January 1998 request for financial information.  
However, the Board also notes that she previously informed VA 
that she was the sole provider for her children and that her 
only income consisted of her earned wages at a GS-05 salary.  
She indicated that even $50 would help her pay for her 
children's expenses.  Thus, the Board concludes that there is 
sufficient financial information of record.  Regardless of 
her financial status, however, the record shows that the 
veteran has not discharged his duty to support his children.  
Further, he has submitted no evidence to indicate that any 
hardship would result if his income were to be apportioned.  
The Board finds, in accordance with the laws and regulations 
reported above, that apportionment of $50 (the amount 
requested by the appellant), which falls within the range of 
more than 20 percent but less than 50 percent of the 
veteran's benefit, would be appropriate for the period from 
the date of the filing of the appellant's claim, March 1994, 
until the date that the youngest child reached 18 years of 
age, July 1998.  See 38 U.S.C.A. § 1114.


ORDER

Entitlement to an apportionment of $50 of the veteran's 
disability compensation benefits per month for the period 
from March 1994 to July 1998 is granted, subject to the 
criteria which govern the payment of monetary benefits.



		
	NANCY I. PHILLIPS
	Member, Board of Veterans' Appeals