Roy L. Hall appealed a Board decision denying his request to stop the apportionment of part of his improved disability pension benefits to his minor daughter. The record showed that his former spouse sought apportionment because she was receiving no financial support for the child, and the RO granted it. When the veteran later argued that the apportionment should end and that he would support the child if the money were paid to him, the Board found that the child did not live with him and that he was not otherwise contributing to her support.

The Court reviewed the Board’s factual findings under the clearly erroneous standard and held that there was a plausible basis for the Board’s determination. The Court accepted the Board’s conclusion that apportionment was warranted under 38 U.S.C. § 5307 and 38 C.F.R. § 3.450 because the veteran was not reasonably discharging his support obligation. The Court also agreed that the veteran’s hardship argument did not control because the Board was not deciding a special apportionment under 38 C.F.R. § 3.451. The decision was affirmed.

Under 38 U.S.C. § 5307 and 38 C.F.R. § 3.450, VA may apportion a veteran’s benefits for a child not in the veteran’s custody when the veteran is not reasonably discharging support obligations; hardship is not the governing inquiry unless the claim is decided under special apportionment principles.

Veterans cannot defeat a regular apportionment merely by asserting hardship if the record shows they are not supporting a dependent child who is not in their custody.

The case provides a straightforward apportionment rule that VA adjudicators and advocates can use when a dependent child is outside the veteran’s custody and support is lacking. It also clarifies the difference between regular apportionment and special apportionment, which affects whether hardship must be shown.

Treating hardship as controlling in a regular apportionment case instead of analyzing whether the veteran is reasonably supporting the dependent.

A veteran receives pension benefits for a child who lives with the other parent. The other parent seeks apportionment because the veteran provides little or no support. VA grants apportionment under the regular rule, and the veteran argues that paying the apportionment causes hardship.

Use this case to argue that apportionment is proper when the veteran is not reasonably supporting a child, and to distinguish cases where the claimant is improperly relying on special-apportionment hardship arguments.

Gilbert v. Derwinski