Citation Nr: 1123580 Decision Date: 06/22/11 Archive Date: 06/28/11 DOCKET NO. 07-35 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether the reduction in compensation benefits due to a dependency change was proper. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran had active military service from May 1975 to May 2001. This matter comes before the Board of Veterans' Appeals (Board) from a letter decision issued in October 2006 by the Montgomery, Alabama, Regional Office (RO), of the Department of Veterans Affairs (VA). In the November 2007 substantive appeal and the April 2011 informal hearing presentation, the Veteran and his accredited representative requested that VA waive recovery of the overpayment in the amount of $2,201.13. See October 20, 2006, letter to the Veteran from the St. Paul Debt Management Center. This matter (including the timeliness of the request) has not been adjudicated by the RO nor is it certified for appellate review. Accordingly, it is referred to the RO for appropriate action. FINDINGS OF FACT 1. In the original claim for VA benefits, which was received at the RO on May 2, 2001, the Veteran reported that he was married to Wife L, but was living separately from her and contributing to her support, and had two dependent children. 2. The Veteran obtained a divorce from Wife L on April [redacted], 2001. 3. The Veteran married Wife K on September [redacted], 2001, but did not notify VA of the marriage until February 2006. 4. The Veteran was informed by the RO in December 2001 that he had been granted VA compensation benefits and would receive additional benefits for three dependents. The names of the dependents were not provided to the Veteran. 5. Following the Veteran's February 2006 submission, VA retroactively terminated spousal benefits for Wife L, effective July 1, 2001, and added Wife K, effective March 1, 2006. CONCLUSION OF LAW The reduction of compensation benefits due to a change in dependency status was proper. 38 U.S.C.A. §§ 5107, 5302(a) (West 2002 & Supp. 2010); 38 C.F.R. §§ 1.911, 3.401, 3.500, 3.501 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Also, the Board must assess the credibility and weight of all evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As an initial matter, the Board notes that the present case involves Chapter 53 of Title 38 of the Unites States Code, and therefore the duty to notify and assist provisions of the Veterans Claims Assistance Act of 2000 [VCAA] do not apply. Barger v. Principi, 16 Vet. App. 132, 138 (2002); see also, 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010). The Veteran has come before the Board expressing disagreement with the reduction in benefits for a dependent spouse during the period of time that he was married to Wife K. On May 2, 2001, the RO received the Veteran's VA Form 21-526, Veteran's Application for Compensation or Pension. In Block 26A (Marital Status), of the form, the Veteran indicated that he was married. However, in Block 27A, he also reported that he was not living with his spouse. Moreover, in Block 27B, he stated that he was separated from his wife as a result of "marital problems." Additionally, in Block 27D, the Veteran declared that he "contributed" $1,500.00 (US dollars) to his estranged spouse plus he paid all bills of the household. The Board notes that it appears that Veteran filled out the form in March 2001 as he dated the form March 19, 2001 - see Block 47. The Veteran formally retired from the US Army on May 31, 2001. Moreover, the Veteran did not submit a marriage license validating his marriage nor did he proffer birth certificates for his two dependent children. The Board notes that, per the claims folder, the RO also did not request from the Veteran these documents. See 38 C.F.R. § 3.204(a)(1) (2010). After further development of the claim, the RO awarded compensation benefits via a rating action issued on December 10, 2001. In that action, it was determined that the Veteran's combined rating was 30 percent. Subsequent to that rating action, the RO sent the Veteran a notification letter. This also occurred in December 2001. It is noted that the notification letter contained the following verbiage: Additional Compensation for Dependent(s) We are paying you as a veteran with three dependent(s). You should notify us immediately of any change in the status of your dependent(s) to avoid possible overpayment of benefits. The December 2001 notification letter, referenced above, did not list the names of the Veteran's three dependents. The claims folder does contain a VA Form 21-8947, Compensation and Pension Award. On that form, Wife L (the estranged spouse) is listed as the Veteran's wife, and W and E are shown as his dependent children. The form is dated December 13, 2001. A copy of VA Form 21-8947 was not provided to the Veteran. A further review of the claims folder reveals that around April 2001, after the Veteran completed but did not submit the VA Form 21-526, he was granted a divorce from Wife L. Three months later, on July [redacted], 2001, the Veteran became a father of Child J. On September [redacted], 2001, the Veteran married Wife K, the mother of Child J. The record indicates that the RO did not receive copies of the wedding certificate or the birth certificate until February 2006. In February 2006, the Veteran submitted a VA Form 21-686c, Declaration of Status of Dependents. On that form, the Veteran reported that he had divorced Wife L, on April [redacted], 2001, and married Wife K on September [redacted], 2001. He also reported two unmarried and under-the-age of twenty-one children - Child J and Child E. The Veteran's son, Child W, was not listed on the form. Eight months later, in October 2006, the Veteran received a letter from the Debt Management Center. On that form, the VA informed the Veteran that an overpayment of compensation in the amount of $2,201.13 (US dollars) had occurred. The letter further indicated that some of the Veteran's benefits would be withheld until the overpayment was recouped. Around the same time that the letter from the Debt Management Center was created and sent to the Veteran, the RO forwarded to the Veteran a letter indicating that it was reducing the Veteran's disability compensation because of his divorce from Wife L. The RO informed the Veteran that the adjustment would mean that an overpayment of benefits had been created. In the notice of disagreement, the Veteran objected to the fact that VA had computed the "Payment Start Date" of his marriage to Wife K as of "Mar 1, 2006," when they were married in August 2001. The Veteran asserted in his substantive appeal that he was "single" when he retired from active service. Thereafter, he remarried and, upon informing VA of his marriage, thought he would receive additional benefits rather than notice of an overpayment. Initially, the Board notes the following: An overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. See 38 U.S.C.A. § 5302 (West 2002); 38 C.F.R. § 1.962 (2010). An overpayment may arise from virtually any benefits program administered pursuant to VA law, including pension, compensation, dependency and indemnity compensation (DIC), education educational assistance benefits and subsistence allowance, insurance benefits, burial and plot allowances, clothing allowance, and automobile or other conveyance and adaptive equipment allowances. 38 C.F.R. § 1.956(a) (2010). Based on the facts as reported by the Veteran, as of May 2001, the Veteran was single. However, he reported in the claim form that he submitted to VA in that month that he had a spouse, from whom he was separated but yet contributing to her support. Based on that representation, VA informed the Veteran in December 2001 that he was receiving benefits for three dependents (i.e., a spouse and two children). As of September [redacted], 2001, the Veteran had married Wife K. The Veteran did not inform VA of this marriage and the birth of his third child, J, until February 2006. Any veteran who is entitled to compensation, and whose disability is rated not less than 30 percent, shall be entitled to additional compensation for a spouse. 38 U.S.C.A. § 1115(1)(A) (West 2002 & Supp. 2010). VA will accept the written statement of a claimant as proof of marriage or birth of a child or purposes of determining entitlement to benefits as long as the statement contains the month, year, and place of the event, the full name and relationship of the other person to the claimant, and the dependent's social security number. 38 C.F.R. § 3.204(a)(1) (2010). Other evidence is required under certain circumstances, such as where the claimant's statement on its face raises a question of its validity or the claimant's statement conflicts with other evidence of record. See 38 C.F.R. § 3.204(a)(2) (2010). A veteran who is receiving compensation must notify the VA of any material change or expected change in his or her circumstances which would affect his or her entitlement to receive the benefit being paid. Such notice must be furnished when the recipient's dependency status changes. 38 C.F.R. § 3.660(a) (2010); see also 38 C.F.R. § 3.652(a) (2010) (requiring individuals in receipt of VA benefits to certify that the eligibility factors which established entitlement to the benefit being paid continue to exist). The effective date of a discontinuance of an award of compensation to a veteran by reason of divorce of a dependent spouse is 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) (2010). The effective date of an award of additional compensation payable to a veteran on account of marriage will be the latest of the following dates: (1) date of claim. This term means the date of the marriage, if the evidence of the event is received within one year. Otherwise, the effective date for additional compensation will be the date that notice of the marriage or adoption was received if the evidence is received within one year of the VA request; (2) date dependency arises; or (3) the effective date of the qualifying disability rating, provided evidence is received within one year of notification of such rating action. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.401(b)(1) (2010). Regardless of VA regulations concerning the effective dates of awards, the payment of monetary benefits may not be made for any period prior to the first day of the calendar month following the month in which the award became effective. See 38 U.S.C.A. §§ 5111(a) (West 2002); 38 C.F.R. § 3.31 (2010). In this case, the Veteran provided incorrect information to VA in May 2001. He informed VA that he was married although he was in fact already divorced. While he did sign the form in March 2001, he did not amend the information in the form before it was submitted to VA. The Veteran does not dispute that he was divorced from his first wife in April 2001. However, VA paid him additional spousal dependency benefits based on his report that he was married to Wife L. until 2006. Upon receiving notice from the Veteran in February 2006 that he was divorced from Wife L. in April 2001, VA properly terminated the additional spousal benefit--that was paid based on the Veteran's prior representation that he was married to Wife L--effective July 1, 2001, as provided by 38 C.F.R. §§ 3.31, 3.501(d)(2) (2010). Additionally, although the appellant married Wife K in September 2001, he did not notify VA of the marriage until February 2006. Again, he does not contend otherwise. As noted, the effective date of an award of additional compensation for a spouse is the date of the marriage, if the evidence of the event is received within one year. Otherwise, the effective date for additional compensation will be the date that notice of the marriage was received. The Veteran did not notify VA of his marriage to Wife K within one year of their marriage. Under these circumstances, the RO properly awarded an additional compensation allowance for Wife K, effective March 1, 2006, as provided by 38 C.F.R. §§ 3.31, 3.401(b)(1) (2010). In addition, additional dependency benefits based on the birth of Child J were properly awarded March 1, 2006, as VA did not learn of her July 2001 birth until February 2006. The debt at issue in this case, which was based on failure to notify VA that he was divorced in April 2001, was therefore properly created. In light of the appellant's contentions, the Board has considered the concept of sole administrative error. When an overpayment has resulted by reason of an erroneous award based solely on administrative error on the part of VA, the reduction of that award cannot be made retroactive to form an overpayment debt owed to VA from the recipient of the erroneous award. Erickson v. West, 13 Vet. App. 495, 499 (2000); see also 38 U.S.C. § 5112(b)(10); 38 C.F.R. § 3.500(b)(2) (2010) (providing that the effective date of a reduction or discontinuance of compensation by reason of an erroneous award based solely on administrative error or error in judgment shall be the date of last payment). The Board notes, however, that sole administrative error may be found to occur only in cases where the appellant neither knew or nor should have known of the erroneous award. Further, such error contemplates that neither the appellant's actions nor his failure to act contributed to payment pursuant to an erroneous award. 38 U.S.C.A. § 5112(b)(10) (West 2002); 38 C.F.R. § 3.500(b)(2) (2010). In this case, the Veteran provided incorrect information to VA in May 2001 that he was married, albeit living separately from his wife and contributing to her support. He did not thereafter inform VA that he was divorced from Wife L until February 2006. He also did not inform VA of his September 2001 marriage to Wife K and July 2001 birth of Child J until February 2006. In light of the information reported by the Veteran to VA in May 2001 that he was married, when he was in fact divorced, the Board cannot find that there was sole VA error in this case. Although the Veteran asserts that he is entitled to spousal dependency benefits for the period of time since his marriage to Wife K, the applicable criteria provide that he cannot be paid such benefits until he notifies VA of that marriage. This did not occur until February 2006, and VA then properly added Wife K to the Veteran's award effective March 1, 2006. For these reasons, VA properly reduced his benefits retroactively upon learning that he was divorced from Wife L in April 2001 and properly added Wife K effective March 1, 2006. Accordingly, the debt at issue in this case is valid for the reasons previously discussed. The Veteran's appeal is denied. (CONTINUED ON NEXT PAGE) ORDER The reduction of compensation benefits due to a change in dependency is valid, and the Veteran's appeal is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs