Citation Nr: 1030633 Decision Date: 08/16/10 Archive Date: 08/24/10 DOCKET NO. 09-22 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE 1. Whether the Veteran is entitled to payment for an award of additional compensation for his dependent spouse, D.G., prior to June 1, 2008. 2. Timeliness of the request for waiver of the recovery of an overpayment of compensation for a dependent spouse in the amount of $4, 572, to include the issue of whether the overpayment was properly created. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD Saira Sleemi, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1978 to July 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2008 award letter of the Columbia, South Carolina Department of Veterans' Affairs (VA) Regional Office (RO) that notified the Veteran that his spouse had been added as a dependent on his compensation award effective June 1, 2008. The Veteran testified at a video conference hearing before the undersigned Veterans' Law Judge in April 2010. A transcript of that hearing has been associated with the claims file. The issue of timeliness of the request for waiver of the recovery of an overpayment of compensation for a dependent spouse in the amount of $4, 572, to include the issue of whether the overpayment was properly created is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran was informed by an August 2005 letter that he was receiving payment as a veteran with two dependents, his former spouse "R" and his child "E," and that he was to notify VA if the status of his dependents had changed. 2. In May 2008, VA received a copy of the Veteran's divorce decree and marriage certificate, indicating divorce proceedings had taken place in July 2004 with his former spouse "R" and that he was married to his current spouse "D" in September 2004; he also provided information as to the status of his current dependents in May 2008. 3. The Veteran was provided notice in May 2008 that he was receiving payment as a Veteran with one dependent, to include his child and that VA was unable to pay him for his current spouse "D," as her marital history was needed; he provided additional information as to the status of his dependents and marital history in June 2008. 4. The Veteran's compensation award was amended in June 2008 to include additional compensation for his current spouse "D," effective June 1, 2008. CONCLUSION OF LAW The criteria for payment of an award of additional compensation for the dependent spouse, D.G., prior to June 1, 2008, have not been met. 38 U.S.C.A. §§ 1115, 1135, 5103, 5107, 5110, (West 2002); 38 C.F.R. §§ 3.4, 3.31, 3.401(b) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2009). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2009). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Prior to the initial adjudication of the Veteran's claim, he was provided notice in a May 2008 award letter of the types of information and evidence necessary to substantiate the claim. In the present appeal, although the Veteran was provided notice of what type of information and evidence was needed to substantiate his claim, he was not provided notice of the type of evidence necessary to establish a disability rating and an effective date for the disability on appeal. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra. However, as the preponderance of the evidence is against the Veteran's claim, the absence of such notification by VCAA letter is not prejudicial in this case. All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes VA notice and award letters, the Veteran's marriage certificate and divorce decree, the Veteran's status of dependents information and the Veteran's statements and testimony. The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2009). Pertinent Laws and Regulations A veteran entitled to receive compensation for service-connected disability rated at not less than 30 percent is entitled to additional compensation for a dependent spouse. 38 U.S.C.A. §§ 1115, 1135; 38 C.F.R. § 3.4(b)(2) (2009). An award of additional compensation for dependents based on the establishment of a rating in the percentage specified by law for that purpose shall be payable from the effective date of such rating, but only if proof of dependents is received within one year from the date of such rating. 38 U.S.C.A. § 5110(f). The effective date of an award of additional compensation for a dependent is the latest of the following dates: (1) Date of claim, which is (i) the date of veteran's marriage if the evidence of the event is received within 1 year of the event, and (ii) the date notice is received of the dependent's existence, if evidence is received within 1 year of the Department of Veterans Affairs request; (2) Date dependency arises; (3) Effective date of the qualifying disability rating provided evidence of dependency is received within 1 year of notification of such rating action; (4) Date of commencement of veteran's award. 38 C.F.R. § 3.401(b); See 38 U.S.C.A. § 5110(f), (n). The earliest that the additional award of compensation for a dependent spouse can occur is the first day of the month following the effective date. See 38 C.F.R. § 3.31. To establish proof of dependency, a claimant must submit a statement and proof of marriage including the spouse's full name, social security number, and date and place of marriage. If the veteran does not reside in a state or if other evidence raises an issue of validity, the claimant will be required to submit proof of marriage. A copy of a public record of marriage containing the names of the parties, date and place of marriage, and number of prior marriages if shown on the official record is adequate will be accepted. 38 C.F.R. §§ 3.204, 3.205. VA Compensation and Pension Manual M21-1MR, Part III, iii, Chapter 5, section B.6 provides development procedures for evidence of a marital relationship if a statement of marital history is not of record or if the veteran does not live in a state. This includes sending the claimant a VA Form 686 or calling the claimant on the telephone. Analysis The Veteran was provided notice in August 2005 of a June 2005 rating action which granted service connection for sensory loss in the 2nd and 3rd divisions of the trigeminal nerve secondary to a surgery to remove hemangioma. This notice also informed him that he was receiving payment for two dependents, his former spouse "R" and his daughter "E," and he was advised that he should inform VA if the status of his dependents changed. In May 2008, the VA received a copy of the Veteran's divorce decree and marriage certificate, indicating divorce proceedings had taken place in July 2004 with his former spouse "R" and that he was married to his current spouse "D" in September 2004. The Veteran also provided information as to the status of his current dependents in a Status of Dependents Questionnaire, which was received in May 2008. Subsequently, in a May 2008 letter, Veteran was provided notice that he was receiving payment as a Veteran with one dependent, which included an additional amount for his child. He was also advised to let VA know if there was any change in the status of his dependents and that VA was unable to pay him for his current spouse "D," because additional information of her marital history was needed. In June 2008, the Veteran submitted a copy of VA form 21-686c, Declaration of Status of Dependents, informing VA of the exact dates and places of his divorce from his former spouse "R" and marriage of his current spouse "D." A June 2008 award letter informed the Veteran that his compensation award was amended to include additional compensation for his current spouse "D," effective June 1, 2008. In an October 2008 statement, the Veteran contended that he submitted documents earlier in the year demonstrating that he was divorced in July 2004 and remarried in September 2004 and that, from September 2004 until the present time, he has had two dependents, his current spouse "D" and his daughter "E." At this time, he also submitted a copy of his report of divorce, showing that his divorce decree was signed in August 2004. During an April 2010 video conference hearing, the Veteran and his current spouse "D" maintained that, while he was divorced from his former spouse "R" in August 2004, he continued to have two dependents since September 2004, namely his daughter "E" and his current spouse "D." The Board finds that the effective date for payment of additional compensation benefits for the Veteran's spouse should be June 1, 2008. The record reflects that VA was aware that the Veteran was divorced from his former spouse "R" and married his current spouse "D" as early as in May 2008, when he submitted a copy of his divorce decree and marriage certificate. Although the Veteran maintains that he remarried in September 2004 and that, from September 2004 until the present time, he has had two dependents, he ultimately provided VA with notice of his change in dependents in May 2008 and June 2008, approximately four years after his divorce and remarriage. The Board also notes that the Veteran was provided notice in August 2005 that he was receiving payment for two dependents, his former spouse "R" and his daughter "E," and he was advised that he should inform VA if the status of his dependents changed, however, no action was taken with respect to the Veteran's status of dependents until May 2008. Thus, the Board concludes that the criteria for establishing dependence for the Veteran's current spouse, "D," were met in June 2008. While the evidence of record demonstrates that dependency of the Veteran's current spouse "D" arose in September 2004, the date of their marriage, the earliest evidence of proof of his marriage was received by VA in May 2008 with the requisite marital history provided in June 2008. Therefore, the effective date for payment of additional compensation benefits for his spouse was appropriately assigned as June 1, 2008, the first day of the month following the date that the RO received proof of the Veteran's divorce from "R" and marriage to "D." ORDER Entitlement to payment for an award of additional compensation for the dependent spouse, D.G., prior to June 1, 2008, is denied. REMAND The Board finds that there is a further VA duty to assist the Veteran in developing evidence pertinent to his claim for timeliness of the request for waiver of the recovery of an overpayment of compensation for a dependent spouse in the amount of $4, 572, to include the issue of whether the overpayment was properly created. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2009). Under the applicable regulations, a request for waiver of an indebtedness shall only be considered if made within 180 days following the date of notice of the indebtedness to the debtor. The 180-day period may be extended if the individual requesting waiver demonstrates that, as a result of an error by the VA or the postal authorities, or due to other circumstances beyond the debtor's control, that there was a delay in such individual's receipt of the notification of indebtedness beyond the time customarily required for mailing. If the requester does substantiate that there was such a delay in the receipt of the notice of indebtedness, the 180-day period shall be computed from the date of the requestor's actual receipt of the notice of indebtedness. 38 U.S.C.A. § 5302(a) (West 2002); 38 C.F.R. § 1.963(b)(2) (2009). In the case at hand, the Veteran was notified in May 2008 that he was receiving payment as a Veteran with one dependent, which included an additional amount for his child. He was also advised to let VA know if there was any change in the status of his dependents and that VA was unable to pay him for his current spouse "D," because additional information of her marital history was needed. In addition, this notice informed the Veteran that his former spouse "R" was removed as his spouse, effective August 1, 2004, the first of the month following his divorce in July 2004, and that this action would create a debt as a result of an overpayment. Finally, the Veteran was informed at this time that he would receive a letter from Debt Management regarding his repayment options. In June 2008, the Veteran was informed that VA had recently sent him a letter explaining that his entitlement to benefits had changed and, as a result, he was paid $4, 572.00 more than he was entitled to receive. This notice also informed him that since he was currently receiving VA benefits, these would be withheld until the amount he was overpaid was recouped, beginning in September 2008. In October 2008, the Veteran contended that he submitted documents earlier in the year that demonstrated he was divorced in July 2004 and remarried in September 2004 and that, from September 2004 until the present time, he has had two dependents, his current spouse "D" and his daughter "E." He argued that he did not owe $4, 572 as he had been married since September 2004. At this time, he also submitted a copy of his report of divorce, showing that his divorce decree was signed in August 2004. During an April 2010 video conference hearing, the Veteran testified that if the benefits he received from September 2004 included an additional spouse, either his former or current spouse, that he was still entitled to these benefits and should have been entitled to receive such benefits from the time he married his current spouse "D" up to the time he notified the VA of her dependency in 2008. He also reported that he intended to challenge the amount of debt and requested a waiver of debt in the event that the debt could be waived. At this time, the undersigned Veterans Law Judge construed the October 2008 notice of disagreement as (1) a challenge to the validity of the debt and (2) a request for a waiver of indebtedness, so that the Veteran has met the timeline requirement of 180 days for having requested a waiver, thereby entitling him to a specific adjudication from the Committee on Waivers and Compromises as to whether this debt could be waived based upon the principles of equity and good conscience. The Court has held that when the validity of a debt is challenged, a threshold determination must be made on that question prior to a decision on waiver of indebtedness . See Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991). A debtor may dispute the amount or existence of a debt, which is a right that may be exercised separately from a request for waiver or at the same time. See 38 C.F.R. § 1.911(c)(1) (2002); see also VAOPGCPREC 6-98. The propriety and amount of the overpayment at issue are matters that are integral to a waiver determination. See Schaper, 1 Vet. App. at 434. As such, the Board believes that the issue of timeliness of the request for waiver of the recovery of an overpayment of compensation for a dependent spouse in the amount of $4, 572, to include the issue of whether the overpayment was properly created, should be remanded for adjudication by the RO to determine whether the debt at issue was properly created and for adjudication by the Committee on Waivers and Compromises at the RO is necessary with respect to the Veteran's waiver request. Accordingly, the case is REMANDED for the following action: 1. The RO should properly develop and adjudicate the issue of whether the overpayment of compensation for a dependent spouse in the amount of $4, 572 was properly created. A comprehensive explanation of the RO's reasons and bases for that decision should be prepared and incorporated into the claims folder. The RO should set forth the laws and regulations which establish the basis for the creation of the overpayment. If it is determined that any or all of the overpayment at issue was improperly created, award action should be taken to rectify the error. In any case, if it is determined that the overpayment was properly created, the RO should furnish the Veteran and his representative notification of appellate rights. Only if the Veteran files a timely notice of disagreement, he and his representative should be provided with a statement of the case as required by 38 U.S.C.A. § 7105(d) (West 2002) as to this issue, with citations to the controlling law and regulations, including, but not limited to 38 C.F.R. §§ 3.271, 3.272, 3.273 and 3.660 (2002), and afforded the opportunity to file a substantive appeal. 2. After the actions requested above have been completed, the case should be referred to the Committee on Waivers and Compromises at the RO to review the record and reconsider the Veteran's request for waiver of the recovery of an overpayment of compensation for a dependent spouse in the amount of $4, 572, and whether it was timely, noting the April 2010 video conference hearing in which the undersigned Veterans Law Judge construed the October 2008 notice of disagreement a request for a waiver of indebtedness, so that the Veteran meets the timeline requirement of 180 days for having requested a waiver, and including any additional evidence obtained by the RO on remand. A formal, written record of the Committee on Waivers and Compromises' decision, including an analysis of the various elements to be considered, should be prepared and placed in the claims file. Only if the Veteran files a timely notice of disagreement, he and his representative should be provided with a statement of the case as required by 38 U.S.C.A. § 7105(d) (West 2002) as to this issue, with citations to the controlling law and regulations, including 38 C.F.R. §§ 1.963 and 1.965 (2009), and afforded the opportunity to file a substantive appeal. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs