Citation Nr: 1131069 Decision Date: 08/24/11 Archive Date: 09/07/11 DOCKET NO. 09-06 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether the overpayment of VA benefits in the amount of $8,409.26 due to a change in the Veteran's marital status was properly created. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to September 1975. This matter comes before the Board of Veterans' Appeals (Board) from an October 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In that decision, the RO found that an overpayment of benefits to the Veteran had occurred due to his failure to report a change in marital status. In November 2006, the RO informed him that the amount of the overpayment was $8,409.26. Jurisdiction over this case was subsequently transferred to the VARO in Oakland, California, and that office forwarded the appeal to the Board. FINDINGS OF FACT 1. The Veteran married J.N.S.O. in August 1976 and they were divorced in October 1982. He married S.J.F. in November 1986 and they were divorced in December 1989. He married his current wife, M.L.M., in May 1999. 2. The Veteran did not notify VA of any of the above changes in his martial status until January 2006. 3. The Veteran was in receipt of service connection for residuals of left great toe and right calcaneus fractures and sternomanubrial dislocation with a combined rating of 30 percent when the RO notified him in December 1978 of the law providing for additional compensation on account of a spouse for veterans having a combined rating of 30 percent or more for service-connected disabilities. 4. After the Veteran submitted a Declaration of Marital and Dependency Status indicating he was married to J.N.S.O. in August 1976, the RO sent him a January 1980 letter indicating that his compensation had been increased based on additional benefits for his spouse and children, and informing him that he was required to promptly report any change in the number or status of his dependents to VA. 5. The Veteran did not inform VA of his divorce or his remarriage until January 2006, when he responded to the RO's request to verify his continued entitlement to additional benefits for a dependent spouse. 6. The RO retroactively terminated payment of additional benefits on behalf of the previous dependent spouse effective November 1, 1982, and did not grant additional benefits on behalf of a new dependent spouse until February 1, 2006, the first day of the month following the date VA was notified. 7. For the period from November 1982 to January 2006, the Veteran received dependency benefits for J.N.S.O. to which he was not entitled because he was not married to her during this time; this resulted in an overpayment to the Veteran of $8,409.26. CONCLUSION OF LAW An overpayment of compensation benefits in the amount of $8,409.26 was properly created. 38 U.S.C.A. §§ 1114, 1115, 1134, 1135, 5107, 5110, 5111, 5112 (West 2002 & Supp. 2010); 38 C.F.R. §§ 1.911, 3.102, 3.400, 3.401, 3.500, 3.501, 3.660 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The law provides for the rates of disability compensation, and for payment of additional compensation for dependents, including spouses, of veterans who are rated at least 30 percent disabled for their service connected disabilities. 38 U.S.C.A. §§ 1114(c), 1115, 1134, 1135. The Veteran has been in receipt of a combined rating of at least 30 percent, effective September 1975, for his service connected residuals of left great toe and right calcaneus fractures and sternomanubrial dislocation. Under 38 U.S.C.A. § 5112(b)(2), the effective date of reduction or discontinuance of compensation by reason of divorce of a dependent of a payee shall be the last day of the month in which such divorce occurs. See 38 C.F.R. § 3.501(d)(2). The effective date of the award of any benefit or increase by reason of marriage shall be the date of that event if proof is received by VA within a year from the date of marriage. 38 U.S.C.A. § 5110(n). Under 38 C.F.R. § 3.401(b), the effective date for the award of additional compensation for a dependent is the latest of (1) the date of claim, which is either the date of his marriage, if evidence of the event is received within one year of the event, or the date notice is received of the dependent's existence, if evidence is received within one year of VA's request; (2) the date the dependency arises; (3) the effective date of the qualifying disability rating, provided evidence of dependency is received within one year of notification of such rating action; or (4) the date of commencement of the Veteran's award. In this case, the RO notified the Veteran in a December 1978 letter of the enactment of the law providing for additional compensation on account of a dependent spouse, child, or parent, for veterans in receipt of a rating of 30 percent or more for service connected disabilities. The RO instructed him that if it received the form and necessary supporting evidence before October 1, 1979, the increased compensation for dependents would be effective October 1, 1978; otherwise, it would be effective from the date of receipt of the evidence. In December 1978, the Veteran responded to this letter, indicating that he had been married to J.N.S.O. from August 1976 and had one child. Supporting evidence was received in January 1980. The RO granted additional compensation effective October 18, 1979, and informed the Veteran of this additional compensation in a January 1980 letter. In that same letter, the RO indicated that the additional compensation included additional benefits for his spouse and children, and also wrote: "[a]ny change in the number or status of your dependents must be reported promptly to the VA." While subsequent communications sent to the same address were returned as undeliverable as indicated by envelopes so stamped in the claims file, there is no indication that the January 1980 letter informing the Veteran of additional compensation and to promptly report any change in the number or status of his dependents to VA was returned as undeliverable. Consequently, the presumption of regularity applies in this case, warranting the Board's presumption that the Veteran received this letter. See Sthele v. Principi, 19 Vet. App. 11, 16 (2004) (there is a presumption of regularity under which it is presumed that government officials have properly discharged their official duties (quoting Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992))); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (presumption of regularity applies to RO's mailing of a VA decision to a veteran). The next communication received from the Veteran was his January 2006 response to the RO's December 2005 letter requesting that he verify his continued entitlement to additional benefits based on an additional amount for his spouse or children. In that response, the Veteran indicated that he had married in M.L.M. in May 1999. Subsequent communications, including an October 1982 divorce decree and June 2006 Declaration of Status of Dependents, reflect that he married J.N.S.O. in August 1976 and they were divorced in October 1982; he married S.J.F. in November 1986 and they were divorced in December 1989; and he married M.L.M. in May 1999 and they remain married. Given that the Veteran received notification that he was required to notify VA of any change in the status of his dependents, and he failed to notify the RO of any of his divorces or remarriages until January 2006, the RO properly found that the additional compensation paid to him based on the erroneous assumption that he was married to J.N.S.O. created an overpayment. Moreover, the amount of the overpayment indicated by the RO, $8,409.26, is the sum of the difference between the previous entitlement amount and the new entitlement amount for each month since November 1982 that the Veteran was erroneously paid as if he were married to J.N.S.O. when in fact they were divorced. Consequently, an overpayment of VA benefits in the amount of $8409.26 due to a change in the Veteran's marital status was properly created. In his November 2006 notice of disagreement (NOD), the Veteran argued that he had been initially notified that the overpayment was $3,042, and the additional amount of over $5,000 had not been explained to him. The Board notes that the claims file contains a calculation of the sum of the difference between the amount due and the amount paid from November 1982 to November 1992, with the total sum being $3,042. However, this figure does not include the difference between the amount due and the amount paid through February 2006, as indicated in the October 2006 decision letter. That amount is $8,409.26 and was properly calculated by the RO. The Veteran also argued in his NOD and February 2009 substantive appeal (VA Form 9) that the RO had failed to take account of his marital status beyond the date of his divorce from J.N.S.O. in 1982, specifically, his marriages to S.J.F. and M.L.M. from November 1986 to December 1989 and from May 1999 to the present, respectively. However, as indicated above, the applicable statute, 38 U.S.C.A. § 5110(n), provides that the date of any increase of an award by reason of marriage is the date of marriage only if proof of the marriage is received by VA within a year from the date of such marriage. In this case, proof of the second and third marriages cited by the Veteran was received in January 2006, well over one year after the most recent, May 1999 marriage took place. Consequently, based on the "latest of the following dates" language of 38 C.F.R. § 3.401(b), the appropriate effective date for resumption of payment of benefits for a dependent spouse is the date of notification of the marriage, which in this case was January 2006. The RO thus correctly calculated the overpayment based on the resumption of additional compensation for a spouse effective the first day of the next month, February 2006. For the foregoing reasons, the preponderance of the evidence reflects that the overpayment of VA benefits in the amount of $8,409.26 due to a change in the Veteran's marital status was properly created. The benefit-of-the-doubt doctrine is therefore not for application, and the appeal is denied. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. However, the VCAA's notification and assistance requirements do not apply to claims for relief under Chapter 53 of Title 38 of the United States Code, pertaining to waiver of recovery of overpayments, which includes the validity of the debt created by overpayment. See Schaper v. Derwinski, 1 Vet. App. 430 (1991) (challenging validity of debt); see also Reyes v. Nicholson, 21 Vet. App. 370 (2007) (the notice provisions of 38 U.S.C. § 5103(a) do not apply to chapter 53 proceedings (special provisions for the waiver of recovery of overpayments) (citing Barger v. Principi, 16 Vet. App. 132 (2002)). There are, however, non-VCAA notification requirements in such cases. Pursuant to 38 C.F.R. § 1.911(b), VA must notify a debtor of his or her rights and remedies in connection with a given debt. These include the right to dispute the existence or amount of the debt, to appeal the decision underlying the debt, and to request waiver of collection of the debt. 38 C.F.R. § 1.911(c). The RO provided such notification in this case. Specifically, the RO's October 2006 decision letter explained to the Veteran why his compensation had been adjusted and an overpayment consequently created, and that he would subsequently be notified of the exact amount of overpayment. The RO also informed him of his right to submit new evidence on this issue, attend a personal hearing, and receive representation. Subsequently, in its November 2006 letter, the RO informed the Veteran that the amount of the overpayment was $8,409.26, that he had the right to dispute the debt and request waiver, and that he had the right to request a hearing if he sought waiver. The RO also enclosed a document entitled Notice of Rights and Obligations. For the above reasons, the RO complied with the notification requirements applicable to claims for relief under Chapter 53 of Title 38 of the United States Code, pertaining to waiver of recovery of overpayments, which includes the validity of the debt created by overpayment. The issue on appeal of whether the overpayment of VA benefits in the amount of $8,409.26 due to a change in the Veteran's marital status was properly created was thus appropriately decided on the merits. ORDER The overpayment of compensation benefits for a dependent spouse in the amount of 8,409.26 was properly created, and the appeal is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs