Citation Nr: 1036733 Decision Date: 09/28/10 Archive Date: 10/05/10 DOCKET NO. 06-28 217A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Whether a debt due to overpayment of compensation benefits is valid. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from April 1976 to May 1979. By a decision entered in March 2005, the RO in Boston, Massachusetts implemented an April 2004 proposal to reduce the Veteran's compensation benefits, effective from March 1, 1994, for failure to provide evidence pertaining to his dependents. In October 2005, the Veteran initiated an appeal to the Board of Veterans' Appeals (BVA or Board), challenging the validity of the debt owed to VA as a result of the retroactive reduction. 38 C.F.R. §§ 20.200, 20.201. In April 2006, while the Veteran's notice of disagreement was pending, the RO informed the Veteran that, based on additional evidence received, his benefits were being further reduced, effective from May 1, 1991. The case was transferred to the jurisdiction of the RO in Hartford, Connecticut, which furnished him a statement of the case in September 2006, addressing the validity of the debt. He perfected the appeal by filing a VA Form 9 (Appeal to Board of Veterans' Appeals) later that same month. 38 C.F.R. §§ 20.200, 20.202, 20.302(b). In his September 2006 substantive appeal, the Veteran requested a BVA hearing at a local VA office before a Member, or Members, of the BVA. In February 2007, he withdrew that request and asked for a local hearing with a Decision Review Officer (DRO). The DRO hearing was held in May 2007. The DRO confirmed and continued the prior determination(s), and the case was transferred to the Board. The Board remanded the case for additional development in October 2009. Following development, the RO continued the prior denial. The case was returned to the Board in May 2010, and the Veteran's representative submitted a written presentation in July. As was noted in the Board's October 2009 remand, the Veteran has submitted a request for waiver of the overpayment here at issue. Inasmuch as the record on appeal does not reflect that the agency of original jurisdiction (AOJ) has taken initial adjudicatory action on that request, the Board has no present jurisdiction to consider it. FINDINGS OF FACT 1. The Veteran was awarded a 30 percent disability rating for a service-connected heart disorder in September 1979. 2. In March 1982, the Veteran submitted a VA Form 21-686c (Declaration of Marital Status) wherein he reported that he had married S in June 1980. He also reported the birth of a child in July 1981. 3. In April 1982, VA granted additional dependency benefits for the Veteran's spouse and child. He was informed that any change in the number or status of his dependents must be promptly reported to VA. 4. The Veteran's marriage to S was terminated by divorce in April 1991. 5. The Veteran married K in September 1995. 6. The Veteran first informed the RO of his divorce and remarriage by a VA Form 21-686c received in July 2005. Based on that information, the RO discontinued dependency benefits for S, effective from May 1, 1991, and awarded dependency benefits for K, effective from August 1, 2005. CONCLUSION OF LAW The debt due to overpayment of compensation benefits for a dependent spouse during the period May 1, 1991 to August 1, 2005, was validly created. 38 U.S.C.A. §§ 1115, 5112, 5302 (West 2002 & Supp. 2010); 38 C.F.R. §§ 1.962, 3.4, 3.401, 3.501 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran was awarded a 30 percent disability rating for a service-connected heart disorder in September 1979. In March 1982, he submitted a VA Form 21-686c wherein he reported that he had married S in June 1980. He also reported the birth of a child in July 1981. In April 1982, VA granted additional dependency benefits for the Veteran's spouse and child. He was informed that any change in the number or status of his dependents must be promptly reported to VA. By a VA Form 21-686c received in July 2005, the Veteran reported that his marriage to S had been terminated by divorce and that he had subsequently married K. (Evidence received in September 2005 shows that the divorce to S became final in April 1991 and that he married K in September 1995.) Based on evidence received and the applicable law and regulations, the AOJ removed S from the Veteran's award of compensation benefits, effective from May 1991; added K to his award, effective from August 1, 2005; and created a debt covering the period during which he was improperly paid benefits for S. On appeal, the Veteran maintains, in essence, that the debt due to overpayment of dependency benefits was not validly created. He says that he timely notified VA of his divorce and remarriage, including through his VA medical care providers, and argues that his second marriage should be recognized effective from 1995. I. Preliminary Matters A. Additional Evidence The AOJ last furnished the Veteran a supplemental statement of the case (SSOC) relative to the issue here on appeal in February 2010. Thereafter, additional evidence was added to the claims file; specifically, VA medical records dated from 1984 to 2006. The Board has reviewed the evidence and finds that it is essentially duplicative of evidence received in December 2009 which showed, among other things, that the Veteran made reference to his divorce and remarriage during periods of treatment beginning in 1995. The evidence does not contain acceptable, secondary evidence of his 1995 marriage, 38 C.F.R. § 3.205, and does not otherwise contain any new or meaningful information that bears on the question of whether the debt at issue in this case was validly created. There is no indication that the mention of divorce or remarriage was intended to provide VA with notice of such acts. Accordingly, there is no need to return the case to the RO for review and preparation of another SSOC. See 38 C.F.R. § 19.31 (2009). To do so would serve only to further delay the adjudication of this appeal, with no possibility of additional benefit flowing to the appellant. B. Notification and Assistance On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010)). The VCAA imposes obligations on VA in terms of its duty to notify and assist claimants. Although the VCAA is applicable to many types of claims, it does not apply in a case such as this, where the issue on appeal involves the validity of a debt. This is so because the statutory provisions pertaining to debts (and waivers of overpayment) are found outside of Chapter 51 of Title 38, United States Code, and because the creation of a debt is premised on the receipt of evidence demonstrating that a claimant has been overpaid: No "application for benefits" need be received. See, e.g., 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010) (indicating that the duties under the VCAA are triggered by the receipt of a claim, or an application for benefits); Lueras v. Principi, 18 Vet. App. 435, 437-38 (2004). Notwithstanding that the provisions of the VCAA are inapplicable, the Board has reviewed this case to ascertain whether the Veteran has had a fair opportunity to present argument and evidence in support of his appeal. The Board concludes that he has. It appears from the record that the AOJ has obtained all potentially relevant records that are procurable, including all available records associated with the Veteran's VA medical care from 1991 to 2005. He has been afforded a hearing, has been apprised of the reasons for the AOJ's determination(s), and has been given ample opportunity to identify and/or submit information and evidence in support of his appeal. No further development action is necessary. II. The Merits of the Appeal A Veteran entitled to compensation based on disability evaluated as 30 percent or more disabling may be paid additional compensation on account of a dependent spouse. 38 U.S.C.A. § 1115 (West 2002 & Supp. 2010); 38 C.F.R. § 3.4(b)(2) (2009). An overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. 38 U.S.C.A. § 5302 (West 2002); 38 C.F.R. § 1.962 (2009). The relevant law pertaining to the Veteran's divorce from S is that the effective date of a reduction in compensation by reason of divorce on or after October 1, 1982, shall be the last day of the month in which the divorce occurred. 38 U.S.C.A. § 5112(b)(2) (West 2002); 38 C.F.R. § 3.501(d)(2) (2009). The relevant law pertaining to his marriage to K is that the effective date of payment of additional compensation is the latest of: (1) the date of marriage, if the evidence of the event is received within one year of the event, (2) the date notice is received of the dependent's existence, if evidence is received within one year of VA's request, or (3) the date dependency arises. 38 C.F.R. § 3.401(b) (2009). Following a thorough review of the evidence in this case, and the applicable law and regulations, it is the Board's conclusion that the evidence preponderates against the Veteran's position that the debt in question is invalid. The evidence clearly establishes that the Veteran's divorce to S became final in April 1991. Under the law, his entitlement to additional benefits on her behalf ended on the last day of that month. The AOJ was therefore correct in its decision to reduce his benefits for S, effective from May 1, 1991. As to the AOJ's decision to add K to the Veteran's award, effective from August 1, 2005, the Board notes that the Veteran's marriage to K occurred in September 1995. It is true, as he contends, that he spoke of his divorce and remarriage to VA medical care providers beginning in 1995. Communicating facts of that sort in a clinical setting, however, is insufficient, in and of itself, to establish entitlement to additional compensation for a dependent. Under applicable regulations, marriage must be established by (1) a copy or abstract of the public record of marriage, or a copy of the church record of marriage, containing sufficient data to identify the parties, the date and place of the marriage, and the number of prior marriages if shown on the official record, (2) an official report from the service department as to marriage which occurred while the veteran was in service, (3) an affidavit of the clergyman or magistrate who officiated, (4) the original certificate of marriage, if VA is satisfied that it is genuine and free from alteration, (5) affidavits or certified statements of two or more eyewitnesses to the ceremony, (6) affidavits and certified statements pertaining to "common law" marriage, or (7) any other secondary evidence which reasonably supports a belief that a valid marriage actually occurred. 38 C.F.R. § 3.205(a) (2009). Nothing in the record establishes that the Veteran ever submitted any of those types of evidence to his VA care providers. Accordingly, and because satisfactory evidence of the marriage to K was not otherwise received prior to July 2005, the AOJ's decision to add K to his award, effective from August 1, 2005 was likewise correct, and creation of the resulting debt was valid. The appeal is denied. Moreover, there is nothing in the controlling law and regulations that suggests that mentioning a divorce or remarriage in association with clinical treatment is sufficient to provide notice to the VA authorizers. There is no intent shown by the Veteran to notify those paying his benefits of his change in status. There is no indication that any pertinent forms were filed at the time of any medical treatment. Additionally, the Board is bound by the VA law and regulations, and nothing in those legal criteria excuse the lack of notice provided in this case, nor is an exception made for information provided in a clinical setting. In arriving at this conclusion, the Board intimates no opinion, either legal or factual, as to the disposition of the Veteran's application for waiver of overpayment. See Introduction, supra. ORDER The debt due to overpayment of compensation benefits for a dependent spouse during the period May 1, 1991 to August 1, 2005, was validly created. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs