PREC 16-94    Apportionment of Benefits       Citation: Vet. Aff. Op. Gen Couns. Prec. 16-94, VAOPGCPREC 16-94, 1994

QUESTIONS PRESENTED:

(a)  Under 38 C.F.R. § 3.458(d), may only certain compensa-

tion benefits be apportioned to a child of a veteran adopted out of the veteran's family, or should this regulation be read to permit apportionment of the portion of improved-pension benefits payable to a veteran on the basis of the existence of the child?

(b)  Does adoption outside the family divest a veteran of legal custody of a child for improved-pension purposes?

(c)  If adoption outside the family does not divest the veteran of legal custody of a child, would the child be considered in the custody of the veteran for purposes of determining the rate of improved-pension payable to the veteran?

HELD:

(a)  Under 38 C.F.R. § 3.458(d), improved-pension benefits generally may not be apportioned to a child of the veteran who has been adopted out of the veteran's family.

(b)  Under Utah law, adoption of a veteran's child outside the veteran's family divests the veteran of legal custody of the child for improved-pension purposes.

(c)  In light of the holding in paragraph (b), above, the third question presented is moot.