Citation Nr: 1321010 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 00-17 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether the creation of the indebtedness due to overpayment of compensation for a dependent spouse was proper. (The issues of entitlement to an increased rating in excess of 20 percent for the degenerative disk disease with history of lumbar sprain, entitlement to a disability rating in excess of 10 percent for right lower extremity radiculopathy, and entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy will be addressed in a separate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to June 1999. This case comes before the Board of Veterans' Appeals (Board) from an Administrative Decision dated in March 2007 from the Regional Office (RO) of the Department of Veterans Affairs (VA), in St. Petersburg, Florida, which determined that an overpayment of compensation benefits had been created. The Board remanded this case in October 2008 and in June 2010 for further development. As the requested development has substantially been completed, no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). It appears that shortly following notice of the creation of the debt in March 2007, the Veteran has submitted a request for waiver of the overpayment. According to an October 2007 letter, the Committee on Waivers and Compromises determined that there was no longer a need to consider the request because a retroactive payment liquidated the indebtedness to the Veteran's account. The Veteran did not appeal this decision, and, therefore, the only issue before the Board is whether the creation of the debt was proper. The Board notes that the October 2012 Supplemental Statement of the Case (SSOC) bifurcated the issue on appeal to: whether or not the effective date of the removal of the dependents spouse, "K", was proper and whether or not the debt created in the amount of $5,613.00 due to the removal of the dependent spouse was proper. However, the Board will proceed with the issue as listed on the title page and will herein below address those two issues in the decision below. FINDINGS OF FACT 1. The Veteran did not properly advise VA of changes in his marital status and he was not entitled to additional compensation for a dependent spouse for the period of May 1, 2001, to September [redacted], 2005; VA was not solely responsible for creation of the overpayment. 2. In March 2007, VA retroactively adjusted the Veteran's benefits based on changes in his dependency status, resulting in an overpayment in the calculated amount of $5,437.00. CONCLUSION OF LAW An overpayment regarding additional compensation for a dependent spouse, in the remaining calculated amount of $5,437.00, was properly created. 38 U.S.C.A. §§ 1115, 5110, 5112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 1.911 , 3.204, 3.205, 3.206, 3.401, 3.500, 3.501 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist In this case, the Veteran's claim involves a challenge to the validity of creation of an overpayment, involving Chapter 53 of Title 38 of the United States Code. Therefore, the duty to notify and assist provisions of the Veterans Claims Assistance Act of 2000 (VCAA) do not apply. Lueras v. Principi, 18 Vet. App. 435 (2004); Barger v. Principi, 16 Vet. App. 132, 138 (2002); see also 38 U.S.C.A. §§ 5103, 5103A (West 2002). Regardless, the Board notes that the Veteran has been advised regarding the applicable regulations pertaining to the effective dates for additional compensation for dependents. He was also provided a meaningful opportunity to participate in the adjudication of the claim. He has been afforded an opportunity for a hearing, has been apprised of the reasons for the RO/AMC's determination(s), and has been given ample opportunity to identify and/or submit information and evidence in support of his appeal. Furthermore, the Board remanded this issue in October 2008 and in June 2010. The Board requested that the VA Debt Management Center (DMC) be contacted for relevant records and that the Veteran be provided with an audit. Following the remands, DMC records were associated with the claims file. Additionally, the October 2012 referenced and included the results of the April 2012 audit. As such, the AMC has substantially complied with the Board's remands. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (requiring substantial, not strict, compliance with remand directives). Therefore, no further development action is necessary. II. Analysis 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 C.F.R. § 1.962 (2012). An overpayment may arise from virtually any benefits program administered pursuant to VA law, including compensation and dependency. See 38 C.F.R. § 1.956(a) (2012). In order for the Board to determine that the overpayment was not properly created, it must be established that the Veteran was legally entitled to the benefits in question or, if there was no legal entitlement, then it must be shown that VA was solely responsible for the Veteran being erroneously paid benefits. Sole administrative error connotes that the Veteran neither had knowledge of nor should have been aware of the erroneous award. Further, neither the Veteran's actions nor his failure to act must have contributed to payment pursuant to the erroneous award. 38 U.S.C.A. § 5112(b)(9), (10) ; 38 C.F.R. § 3.500(b)(2); Jordan v. Brown, 10 Vet. App. 171 (1997). VA law provides for additional monthly compensation for dependents when a veteran is entitled to disability compensation evaluated as thirty percent or greater. 38 C.F.R. § 3.4(b)(2) (2012). The Veteran has been evaluated as 30 percent disabled or higher since July 1999 and thus, he was eligible for additional benefits based on dependency, provided certain requirements were met. In this regard, the Board observes that VA has various regulations addressing dependency as well as the effective dates for granting and discontinuing such awards. Additional compensation for a new dependent will be effective the latest of the: (1) date of claim; (2) date the dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within a year of notification of such rating action; or (4) date of commencement of a veteran's award. 38 C.F.R. § 3.401(b). The "date of claim" means the date of a veteran's marriage, if evidence of the event is received within a year of the event; otherwise, the date notice is received of the dependent's existence. 38 C.F.R. § 3.401(b)(1). For divorces on or after October 1, 1982, a dependent spouse will be removed from a compensation award effective the last day of the month in which the divorce occurred. 38 C.F.R. § 3.501(d)(2). Except as provided in paragraph (a)(2) of 38 C.F.R. § 3.204, VA will accept, for the purpose of determining entitlement to benefits under laws administered by VA, the statement of a claimant as proof of marriage or dissolution of marriage, provided that the statement contains: the date (month and year) and place of the event; and the full name and relationship of the other person to the claimant. A claimant must also provide the social security number of any dependent on whose behalf he or she is seeking benefits. 38 C.F.R. § 3.204(a)(1). VA shall require the types of evidence indicated in 38 C.F.R. §§ 3.205 through 3.211 in certain circumstances, including when the claimant's statement conflicts with other evidence of record. 38 C.F.R. § 3.204(a)(2). Proof of marriage and divorce are addressed in 38 C.F.R. §§ 3.205 and 3.206. By way of history, in July 2000 the RO issued a rating decision and an August 2000 RO letter informed the Veteran of the decision and that his overall or combined evaluation was 60 percent. He was also informed that he was being paid additional benefits for his spouse, "K", and his two children. It was also specifically stated "Let us know right away if there is any changes in the status of your dependents." The August 2000 letter also included a breakdown of his pay and the dates that his two children would be removed as dependents from his VA compensation. In January 2006 the Veteran submitted form 21- 686c, Declaration of Status of Dependents, and listed three different spouses. He stated that he divorced "K" on April [redacted], 2001; he then married "J" on August [redacted], 2001, and divorced her on June [redacted], 2004; and he then married "D" on September [redacted], 2005. He also wanted to add his stepdaughter, "D"'s daughter, as a dependent; she was over 18 but was in school. The Board notes that this was the first indication from the Veteran of his divorce from "K", his marriage and subsequent divorce from "J", and his third marriage to "D". In March 2007 the RO notified the Veteran that "K" was removed as a dependent effective April 30, 2001; and he was then paid without a dependent spouse until the addition of "D" on October 1, 2005. He was also notified that his stepdaughter was added as of October 1, 2005, but then removed effective January 1, 2007, because she was no longer in school. The RO also notified the Veteran that the RO was unable to pay any dependency benefits based on his marriage to "J" as he did not keep the VA apprised of this change in marital/dependency status in a timely fashion. According to the June 2007 Statement of the Case (SOC) the debt created due to an overpayment of a spouse was $5,437.00. In statements throughout the appeal, the Veteran acknowledges that while he was in receipt of VA benefits for dependent "K" during a time in which he was not married to her the debt is still not valid for various reasons. First, he alleges that he was never given proper notification of the need to promptly notify the VA of any change in the status of his dependents. He has also argues that, even if the VA is entitled to recoup payment that he received based on his marriage to "K", during the time in which they were no longer married, he should in turn be reimbursed by the VA for the period in time in which he was married to "J". After carefully reviewing the claims file and considering the Veteran's contentions, the Board finds that the Veteran's debt is valid. First, the Veteran was notified in the August 2000 letter that he was being paid additional benefits for his spouse, "K", and his two children and was specifically told "Let us know right away if there is any changes in the status of your dependents." During the time period of August 2000 to January 2006, the Veteran was in constant contact with the RO on other matters that he appealed to the Board; in May 2001, for example, the Board remanded the issues of entitlement to a higher initial rating in excess of 10 percent for irritable bowel syndrome (IBS) with hiatal hernia and gastritis and a higher initial rating in excess of 10 percent for pruritic dermatitis. During the subsequent development of these appeals, which are no longer before the Board, in addition to contacting the RO in developing those claims, he also informed the Phoenix RO that he was moving to Texas in April 2002. In none of his correspondences to the RO during the time period of August 2000 to January 2006 did the Veteran mention his divorce to "K" or any new marriage or his additional stepchild. The Veteran had plenty of opportunities to notify the RO of the change in his dependents, as he was directed to do in August 2000. In this situation, the Veteran's failure to act contributed to the overpayments; moreover, there is no evidence that VA was solely responsible in the Veteran being paid for a spouse dependent that he was no longer married to and there is evidence that the RO instructed the Veteran that he had to inform the RO of any changes in his dependents. Therefore, the overpayment was properly created. 38 U.S.C.A. § 5112(b)(9), (10); 38 C.F.R. § 3.500(b)(2); Jordan v. Brown, 10 Vet. App. 171 (1997). The RO was not notified until January 2006 in the change of dependents. At that time, he was married to "D". The effective date for additional compensation on the basis of dependents is the date of such rating if proof of dependents is received within one year from the date of notification of such rating action. 38 U.S.C.A. § 5110(f); 38 C.F.R. § 3.401(b)(3). The effective date can also be based upon the date of marriage, if proof of such event is received by the Secretary within one year from the date of marriage. 38 U.S.C.A. § 5110(n); 38 C.F.R. § 3.401(b)(1)(i). In addition, for divorces on or after October 1, 1982, a dependent spouse will be removed from a compensation award effective the last day of the month in which the divorce occurred. 38 C.F.R. § 3.501(d)(2). In this case, that means the Veteran's first wife, "K," would be removed effective April [redacted], 2001. In order for the Veteran to then add another dependent spouse to his benefits proof of the marriage must be received within one year from the date of marriage; thus, in order for the Veteran's second spouse "J" to be added as a dependent spouse he had until August [redacted], 2002, a year after the date of his marriage, to notify the RO. However, the Veteran failed to notify the RO of the existence of "J" until January 1, 2006; this, was over four years after his date of marriage and almost one and a half years after his date of divorce from "J". Thus, the Veteran did not meet the time requirements under 38 C.F.R. § 3.401(b)(1)(i) and therefore, he is not eligible for retroactive payment for a dependent spouse on the behalf of "J". The Board notes that the RO was informed of the marriage to "D" within one year of the date of marriage (September [redacted], 2005); thus, she was properly added on the month following the date of marriage October [redacted], 2005. Therefore, the Board finds that the overpayment was properly created. The Veteran has also stated that he was entitled to 15 months of additional payments for his stepdaughter ("D"'s daughter) who was over 18 and attending school at his house for 15 months prior to January 2007 and that this should be factored in the calculations. The Board notes that according the March 2007 letter and accompanying chart, the RO added her as dependent effective October 1, 2005, (the date of his marriage to "D" and thus, the date she became his stepdaughter), and removed her as a dependent effective December 31, 2006, since she was no longer in school. Therefore, his stepdaughter was not a factor in the calculations of overpayment. In sum, the Board finds that validity of the debt is proper since the Veteran had notice that he was to notify the RO of any changes in dependency and did not notify the RO of any changes in dependency until January 1, 2006. At that time, "K" was removed effective April [redacted], 2001, (the month of his divorce) and his current wife "D" was added effective October 1, 2005, (the month after his marriage) since the RO was notified within one year of the date of marriage. Therefore, he did not have any valid spouse dependents to which he was entitled additional payment for from May 1, 2001, to September [redacted], 2005; the Veteran's second wife "J" cannot be added as a dependent spouse because the RO did not inform the RO of their marriage within one year of the date of marriage. Thus, for the foregoing reasons, the Board finds that the creation of the overpayment in the amount of $5,437.00 was proper, and the Veteran's appeal must be denied. ORDER The overpayment regarding additional compensation for a dependent spouse, in the calculated amount of $5,437.00, was properly created. ____________________________________________ K. GIELOW Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs