Citation Nr: 1328548	
Decision Date: 09/06/13    Archive Date: 09/16/13

DOCKET NO.  07-23 838	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUE

Entitlement to an earlier effective date prior to March 1, 
2006, for additional compensation based on dependents to 
include the propriety of the recovery of overpayments from 
the November 2001 divorce to March 1, 2006. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

J. D. Deane, Counsel
INTRODUCTION

The Veteran served on active duty from February 1986 to 
March 1996. 

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a January 2007 decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
St. Petersburg, Florida. 

In December 2007, the Veteran presented testimony at a 
personal hearing conducted at the St. Petersburg RO before 
the undersigned who was designated by the Chairman to 
conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 
2002) and who is rendering the determination in this case.  
A transcript of the personal hearing is in the record. 

In a December 2008 decision, the Board denied the claim for 
entitlement to an earlier effective date prior to March 1, 
2006, for additional compensation based on dependents.  
Subsequently, the Veteran appealed the Board's decision to 
the United States Court of Appeals for Veterans Claims (the 
Court) and in a Mandate dated in November 2010, the Court 
ordered that the August 2010 Memorandum Decision was final 
and not subject to further review.  The Board observes that 
the Court indicated in the August 2010 Memorandum Decision 
that the "real issue in this case is the propriety of the 
Secretary's recovery of putative overpayments made between 
the time of the appellant's November 2001 divorce and the 
March 1, 2006 effective date for spousal benefits for the 
[V]eteran's current wife."  The Board has recharacterized 
the issue to reflect the Court's phrasing of the matter on 
appeal. 

The issues of entitlement to service connection for a left 
hand ring finger injury, entitlement to service connection 
for fatigue syndrome, and entitlement to an increased 
evaluations for right shoulder, skin irritation, and left 
elbow fracture disabilities have been raised by the record, 
but have not been adjudicated by the Agency of Original 
Jurisdiction (AOJ).  Therefore, the Board does not have 
jurisdiction over them, and they are referred to the AOJ for 
appropriate action.  

The record before the Board consists of the Veteran's paper 
claims file and an electronic file known as Virtual VA. 


FINDINGS OF FACT

1.  The Veteran divorced his second wife in November 2001 
and married his current third wife in April 2002. 

2.  The Veteran first notified VA of his change in marital 
status and of his stepson in a form received in February 
2006.

3.  Effective March 1, 2006, the Veteran was awarded 
additional compensation based on two dependents (his current 
third wife and stepson).

4.  Although the Veteran asserted that he informed the St. 
Petersburg RO by telephone in May or June 2002 of his change 
in marital status and marriage to his third and current wife 
in April 2002, evidence of record indicates that he did not 
properly notify the St. Petersburg RO of his divorce and 
remarriage until February 2006.

5.  The period of time affected by the overpayment is from 
the November 2001 divorce to March 1, 2006.

6.  The overpayment in the amount of $4,572.00 was validly 
created and properly recovered, as the Veteran improperly 
received monthly payments during the period from the 
November 2001 divorce to March 1, 2006, on behalf of his 
second dependent spouse.




CONCLUSIONS OF LAW

1.  The requirements for entitlement to an earlier effective 
date prior to March 1, 2006, for additional compensation for 
dependents have not been met.  38 U.S.C.A. §§ 1115, 5110, 
5111 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.31, 3.204, 
3.205, 3.400, 3.401 (2013).

2.  The overpayment of benefits in the amount of $4,572.00 
due to the removal of the Veteran's second spouse as a 
dependent, effective December 1, 2001, was validly created.  
38 U.S.C.A. §§ 5107, 5112, 7104 (West 2002 & Supp. 2012); 38 
C.F.R. §§ 3.102, 3.501 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Upon receipt of a substantially complete application for 
benefits, VA must notify the claimant what information or 
evidence is needed in order to substantiate the claim and it 
must assist the claimant by making reasonable efforts to get 
the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 
C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 
183, 187 (2002).  The notice required must be provided to 
the claimant before the initial unfavorable decision on a 
claim for VA benefits, and it 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 the claimant is expected to provide.  38 
U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. 
Principi, 18 Vet. App. 112, 120 (2004).

With respect to the Veteran's earlier effective date claim, 
the Board notes that the Court has held that the statutory 
and regulatory provisions pertaining to VA's duty to notify 
and to assist do not apply to a claim if resolution of that 
claim is based on statutory interpretation, rather than 
consideration of the factual evidence.  See Dela Cruz v. 
Principi, 15 Vet. App. 143, 149 (2001).

As discussed below, resolution of the Veteran's appeal for 
earlier effective date for additional compensation for 
dependents is wholly dependent on interpretation of the 
relevant VA statutes and regulations.  Thus, as no 
reasonable possibility exists that any further factual 
development would assist in substantiating the claim, should 
any deficiencies of VCAA notice or assistance exist, they 
are rendered moot.  See 38 U.S.C.A. § 5103A; Wensch v. 
Principi, 15 Vet. App. 362, 368 (2001) (compliance with the 
VCAA is not required if no reasonable possibility exists 
that any notice or assistance would aid the appellant in 
substantiating the claim). Moreover, because the claim is 
being denied as a matter of law, no further development 
under the VCAA is necessary.  See Mason v. Principi, 16 Vet. 
App. 129, 132 (2002); see also Livesay v. Principi, 15 Vet. 
App. 165 (2001) (en banc) (holding that the VCAA is not 
applicable where it could not affect a pending matter and 
could have no application as a matter of law); Sabonis v. 
Brown, 6 Vet. App. 426, 429-30 (1994) (where the operation 
of law is dispositive, the appeal must be terminated because 
there is no entitlement under the law to the benefit 
sought). 

The Board further notes that a decision by the United States 
Court of Appeals for Veterans Claims (Court) has held that 
the notice and duty to assist provisions (38 U.S.C.A. §§ 
5103, 5103A) do not apply to waiver claims.  Barger v. 
Principi, 16 Vet. App. 132, 138 (2002).  In reaching this 
decision, the Court observed that the statute pertaining to 
waiver claims, 38 U.S.C.A. § 5302, contains its own notice 
provisions.  This statute requires that a payee be notified 
of his right to apply for a waiver, and a description of the 
procedures for submitting the application.  38 U.S.C.A. § 
5302(a). 

By regulation it is required that when a debt results from 
an individual's participation in a benefits program, the 
individual must be informed of the exact amount of the debt, 
and the collection methods to be employed.  38 C.F.R. 
§ 1.911(d).  The individual must also be notified of his 
rights and remedies, specifically, that he may informally 
dispute the debt, or the amount of the debt; that he may 
request a waiver; that he may request a hearing; and that he 
may appeal the underlying debt.  38 C.F.R. § 1.911(b), (c).  
The claimant must also be provided notice of the reasons for 
the debt.  38 C.F.R. § 1.911(d).  This was accomplished in 
the May 2007 Committee of Waivers and Compromises (COWC) 
decision and also in the March 2013 supplemental statement 
of the case (SSOC). 

The Board also finds that all relevant facts have been 
properly developed, and that all evidence necessary for 
equitable resolution of the issue on appeal has been 
obtained.  The Veteran has identified no additional evidence 
that has not been obtained.  Accordingly, the Board 
concludes that the evidence of record provides sufficient 
information to adequately evaluate the claim.  Therefore, no 
further assistance to the Veteran with the development of 
evidence is required. 

Laws and Regulations

Under VA laws and regulations, a specific claim in the form 
prescribed by the VA must be filed in order for benefits to 
be paid or furnished to any individual under laws 
administered by the VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 
3.151(a).  Generally, the effective date of an award of 
disability compensation based on an original claim shall be 
the date of receipt of the claim or the date entitlement 
arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. 
§ 3.400. 

"Claim" is defined broadly to include a formal or informal 
communication in writing requesting a determination of 
entitlement or evidencing a belief in entitlement to a 
benefit.  38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 
32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 
(1992).  Any communication or action, indicating an intent 
to apply for one or more benefits under laws administered by 
the VA from a claimant may be considered an informal claim.  
Such an informal claim must identify the benefits sought.  
Upon receipt of an informal claim, if a formal claim has not 
been filed, an application form will be forwarded to the 
claimant for execution.  38 C.F.R. § 3.155(a).  To determine 
when a claim was received, the Board must review all 
communications in the claims file that may be construed as 
an application or claim.  See Quarles v. Derwinski, 3 Vet. 
App. 129, 134 (1992). 

An award of additional compensation on account of dependents 
based on the establishment of a disability rating in the 
percentage evaluation specified by law for the purpose shall 
be payable from the effective date of such rating; but only 
if such proof of dependents is received within one year from 
the date of such rating action.  38 U.S.C.A. § 5110(f). 

The effective date of the award of any benefit or any 
increase therein by reason of marriage or the birth or 
adoption of a child shall be the date of such event if proof 
of such event is received by the Secretary within one year 
from the date of marriage, birth, or adoption.  38 U.S.C.A. 
§ 5110(n). 

Commencement of a period of payment is generally the first 
day of the calendar month following the month in which the 
award became effective.  38 C.F.R. § 3.31.

With respect to the effective date for additional 
compensation or pension for dependents, the effective date 
will be the latest of the following dates:  (1) date of 
claim; (2) the date 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; (4) date of commencement of veteran's 
award.  38 C.F.R. § 3.401(b). 

The regulation further defines the date of claim for 
additional compensation for dependents as the date of 
veteran's marriage or birth of his or her child or adoption 
of a child, if the evidence of the event is received within 
one year of the event; otherwise, the date notice is 
received of the dependent's existence, if evidence is 
received within one year of notification of such rating 
action.  38 C.F.R. § 3.401(b)(1). 

The effective date of discontinuance of pension or 
compensation to or for a veteran in the event of divorce or 
annulment on or after October 1, 1982, will be the last day 
of the month in which divorce or annulment occurred.  38 
C.F.R. § 3.501(d)(2).

In order to receive an additional payment for a spouse, 
sufficient proof of marriage is necessary.  38 C.F.R. §§ 
3.204, 3.205, 3.216.  A valid marriage may be established by 
various types of documentary evidence, including 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 marriage, and 
the number of prior marriages if shown on the official 
record.  Where necessary to a determination of a valid 
marriage because of conflicting information, proof of 
termination of a prior marriage will be shown by proof of 
death, or a certified copy or a certified abstract of final 
decree of divorce, or annulment specifically reciting the 
effects of the decree.  38 C.F.R. § 3.205.  The regulations 
also provide that VA will accept the written statement of a 
claimant as proof of marriage for purposes of determining 
entitlement, provided the statement contains the date (month 
and year) and place of the marriage and the full name and 
relationship of the other person to the claimant.  38 C.F.R. 
§ 3.204(a)(1). 

Individuals to whom benefits are being paid are required to 
certify, when requested, that any or all of the eligibility 
factors which established entitlement to the benefit being 
paid continue to exist.  38 C.F.R. § 3.652(a).  When the 
required certification is received, benefits will be 
adjusted, if necessary, in accordance with the facts found.  
38 C.F.R. § 3.652(b).

The law provides that there shall be no collection of an 
overpayment, or any interest thereon, which results from 
participation in a benefit program administered under any 
law by VA when it is determined that collection would be 
against equity and good conscience.  The term "overpayment" 
refers only to those benefit payments made to a designated 
living payee or beneficiary in excess of the amount due or 
to which such payee or beneficiary is entitled.  38 U.S.C.A. 
§ 5302(a); 38 C.F.R. § 1.962.  Overpayments created by 
retroactive discontinuance of benefits will be subject to 
recovery if not waived.  38 C.F.R. § 3.660(a)(3). 

In determining whether a waiver of overpayment is 
appropriate, VA's inquiry is focused on three distinct 
questions.  First, VA must determine if the overpayment at 
issue was validly created.  See Schaper  v. Derwinski, 1 
Vet. App. 430, 434-35 (1991) (noting that before 
adjudicating a waiver application, the lawfulness of the 
overpayment must first be decided); see also VAOPGCPREC 6-98 
(holding that where the validity of the debt is challenged, 
that issue must be developed before the issue of entitlement 
to a waiver of the debt can be considered).  For obvious 
reasons, in the absence of a valid debt, no further inquiry 
is necessary. 

Second, if the debt is valid, VA must determine if fraud, 
misrepresentation, or bad faith played a role in its 
creation.  If it did, waiver of the overpayment is 
automatically precluded, and further analysis is not 
warranted.  See 38 U.S.C.A. § 5302 (West 2002); 38 C.F.R. §§ 
1.962, 1.963(a), 1.965(b) (2013); see also Ridings v. Brown, 
6 Vet. App. 544 (1994) (holding that the Board must 
independently address the matter of bad faith before 
addressing whether waiver would be appropriate). 

In order to establish actual fraud, it must be determined 
that there was willful misrepresentation of a material fact, 
or the willful failure to disclose a material fact, with the 
intent of obtaining or retaining eligibility for VA 
benefits.  It must be shown that the willful intent to 
either misrepresent or fail to disclose was done with the 
debtor's knowledge that such misrepresentation or failure 
would result in the erroneous award or erroneous retention 
of VA benefits.  Essentially, there must be a finding that 
the person willfully failed to disclose a material fact or 
willfully misrepresented a material fact, and there must be 
a finding that the debtor had knowledge that such 
misrepresentation or failure would result in an erroneous 
award or erroneous retention of VA benefits.  38 C.F.R. § 
1.962(b). 

Misrepresentation is defined as any manifestation by words 
or other conduct by one person to another that, under the 
circumstances, amounts to an assertion not in accordance 
with the facts.  Further, misrepresentation is an untrue 
statement of fact, and incorrect or false representation, 
and that which, if accepted, leads the mind to an 
apprehension of a condition other and different from that 
which exists. Colloquially, it is understood to mean a 
statement made to deceive or mislead.  Black's Law 
Dictionary, 1001 (6th ed. 1990).  The misrepresentation must 
be more than non-willful or mere inadvertence.  38 C.F.R. § 
1.962(b). 

Bad faith is defined as unfair or deceptive dealing by one 
who seeks to gain thereby at another's expense.  A debtor's 
conduct in connection with a debt arising from participation 
in a VA benefits/services program exhibits bad faith if such 
conduct, although not undertaken with actual fraudulent 
intent, is undertaken with intent to seek an unfair 
advantage, with knowledge of the likely consequences, and 
results in a loss to the government.  38 C.F.R. § 
1.965(b)(2).

Finally, after it has been determined that the debt is valid 
and that fraud, misrepresentation, and/or bad faith had no 
part in its creation, VA must then consider whether 
collection of the debt would be against equity and good 
conscience.  38 U.S.C.A. § 5302(b) (West 2002); 38 C.F.R. §§ 
1.962, 1.963, 1.965 (2008).  In essence, "equity and good 
conscience" means fairness to both the appellant and to the 
government. 

"Equity and good conscience" involves a variety of elements:  
(1) Fault of the debtor.  Where the actions of the debtor 
contribute to creation of the debt.  (2) Balancing of 
faults.  Weighing fault of the debtor against VA fault.  (3) 
Undue hardship.  Whether collection would deprive debtor or 
family of basic necessities. (4) Defeat the purpose.  
Whether withholding of benefits or recovery would nullify 
the objective for which benefits were intended.  (5) Unjust 
enrichment.  Failure to make restitution would result in 
unfair gain to the debtor.  (6) Changing position to one's 
detriment.  Reliance on VA benefits results in the 
relinquishment of a valuable right or incurrence of a legal 
obligation.  38 C.F.R. § 1.965(a).  The list of elements 
contained in the regulation is not all inclusive.  Ridings 
v. Brown, 6 Vet. App. 544, 546 (1994).  Particular emphasis 
is, therefore, placed upon the elements of the fault of the 
debtor and undue hardship.  38 C.F.R. § 1.965(a).

Factual Background and Analysis

The Veteran contends that the correct effective date for the 
award of spousal benefits for his third and current wife 
should be April 2002, when they were first married.  The 
Veteran asserted that following his April 2002 marriage, he 
placed a telephone call to VA's service number in 
approximately May or June 2002 and informed VA of his 
divorce from his second wife and marriage to his third wife.  
He stated that the VA employee who answered the phone 
informed him that his wife's name did not have to change in 
the system because he only had one dependent and the amount 
of money would be the same.  The record reflected that the 
Veteran received approximately five years of spousal benefit 
payments which still carried the name of his second wife. 

The record reflects that the Veteran was originally awarded 
VA compensation benefits for multiple service-connected 
disabilities, effective March 29, 1996, in an April 1999 RO 
rating decision with an associated July 1999 notice letter.  
In that letter, the Veteran was informed that he need to 
send the RO a VA Form 21-686c (Declaration of Status of 
Dependents).  In an additional July 1999 letter issued after 
the completed VA Form 21-686c was received, the RO indicated 
that it was paying the Veteran as a veteran with one 
dependent.  It also clearly informed the Veteran that he was 
responsible to inform the RO if there was any change in the 
number or status of his dependents.  The Veteran was further 
informed that his failure to quickly tell VA of a dependency 
change would result in an overpayment which must be repaid.

The Veteran submitted a VA Form 21-686c, Declaration of 
Status of Dependents, which was received on February 1, 
2006.  He indicated that he had divorced his second wife in 
November 2001, and married his current third wife in April 
2002.  He provided a copy of the November 2001 judgment of 
dissolution of the marriage as well as a copy of his April 
2002 marriage certificate and his stepson's birth 
certificate. 

In a November 2006 letter, the VA Debt Management Center 
(DMC) notified the Veteran that he had accrued an 
overpayment of $4,527.00.  

Based on the information provided by the Veteran in February 
2006, the RO issued a decision in December 2006 in which an 
adjustment was made to his monthly VA award.  It was noted 
that action was being taken to reduce his benefits, which 
had resulted in an overpayment because he should have been 
paid as a single veteran with no dependents effective from 
December 1, 2001.  The decision also stated that the RO was 
still processing his claim to add his current wife and 
stepchild to his benefits.  The letter further notified him 
that he would receive separate correspondence from the VA 
DMC with the exact amount of his overpayment along with 
repayment information. 
The RO subsequently issued a decision in January 2007 in 
which it was determined that the Veteran would be paid 
additional compensation for his current third spouse and 
child effective from March 1, 2006.  The Veteran submitted a 
notice of disagreement with that decision in January 2007, 
in which he contended that the effective date for the 
additional compensation for his two dependents should be May 
1, 2002 (the first day of the month following the date of 
his third marriage). 

In January 2007, the Veteran also requested a waiver of 
recovery of overpayment and submitted a Form 5655 Financial 
Status Report showing that his claimed monthly expenses 
exceeded his claimed monthly income.  Later that month, the 
VA DMC referred the Veteran's waiver of recovery of 
overpayment request to the COWC.  Financial source 
documents, to include award printouts, concerning the debt 
creation were then associated with the record in 2007.  

In a May 2007 decision, the COWC determined that the Veteran 
had accrued an overpayment of $ 3,415.00 (adjusted from the 
original amount by the COWC) that was created because he 
divorced his second wife and did not immediately inform VA.  
It was noted that as a recipient of VA benefits, the Veteran 
was fully informed of the criteria used to determine his 
benefit payment and his rights and responsibilities to be 
eligible to receive compensation benefits.  It was further 
indicated that the Veteran had been advised that the rate of 
compensation was directly related to dependency and that any 
changes in dependency must be reported to VA immediately to 
avoid an overpayment.  The COWC found the Veteran was at 
fault in the creation of the debt and that repayment of the 
debt would pose some degree of hardship for him.  It was 
further noted that since the Veteran was not entitled to the 
full amount of compensation received while divorced from his 
second wife, failure to make restitution of extra benefits 
paid would result in unjust enrichment at the expense of the 
Government.  After weighing all the applicable elements 
mentioned above, the COWC decided that a denial of the 
Veteran's waiver request would not be against equity and 
good conscience.

In his July 2007 substantive appeal and his December 2007 
hearing transcript, the Veteran asserted that he had called 
the Veterans Benefits Administration (1-800-827-1000) at the 
end of April 2002 or May 2002 or June 2002 to notify VA of 
his change in spouse.  He indicated that the male employee 
who answered the phone told him not to worry about changing 
names, as he still had one dependent and the amount of the 
money benefit would remain the same.  The Veteran indicated 
that he was sent no paperwork by VA after the call, had no 
intent to defraud the government, and was following the 
instructions provided by a VA employee.  During his December 
2007 hearing, the Veteran explained that a co-worker had 
informed him of his ability to add his stepson as a 
dependent.  He reported that he then contacted VA and was 
send paperwork in 2006.  The Veteran reported that he was 
single from November 2001 until April 2002 and that the 
effective date for additional compensation for his third 
wife should be April 2002.  He acquiesced that that he owed 
the government five months of dependency compensation not 
five years. 

In a December 2008 decision, the Board determined that 
because the Veteran had not reported his remarriage within 
one year of its occurrence, the effective date for the 
spousal benefits for his current third wife could be no 
earlier than March 1, 2006.  38 C.F.R. § 3.401(b).  The 
Board acknowledged that the Veteran remarried in April 2002; 
however, he did not notify VA of this marriage until 
February 2006.  As such, the Board found that the Veteran 
did not provide evidence of the marriage within one year of 
the event.  Thus, the Board determined that additional 
compensation for the Veteran's wife and stepson must be 
effective from the first day of the month following the 
month in which the claim for additional compensation was 
received.  As the claim was received in February 2006, the 
Board found that the RO had correctly assigned an effective 
date of March 1, 2006.  The Board concluded that there was 
no legal basis for granting an earlier effective date. 

The Board further acknowledged the Veteran's contention that 
he called VA in May or June 2002 and notified them of the 
change in his marital status.  It also noted the assertions 
by the Veteran that the VA employee with whom he spoke did 
not tell him that there was paperwork that needed to be 
submitted.  After findings that there was no record of such 
contact, the Board referenced the presumption of regularity 
as a way to resolve situations such as this one.  It was 
indicated that the Court had noted that there was a 
presumption of regularity in the law to the effect that 
"[t]he presumption of regularity supports the official acts 
of public officers and, in the absence of clear evidence to 
the contrary, courts presume that they have properly 
discharged their official duties."  It was further noted 
that clear evidence to the contrary was required to rebut 
the presumption of regularity.  Ashley v. Derwinski, 2 Vet. 
App. 307 (1992), (quoting United States v. Chemical 
Foundation, 272 U.S. 1, 14-15 (1926)).  While the Ashley 
case dealt with regularity in procedures at the Board, in 
Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Board 
commented that the Court had applied the presumption of 
regularity to procedures at the RO level, such as in the 
instant case.  The Court specifically held that a statement 
of an appellant, standing alone, is not sufficient to rebut 
the presumption of regularity in RO operations.  See Jones 
v. West, 12 Vet, App. 98, 100 (1998); Ashley v. Derwinski, 2 
Vet. App. 62, 64-65 (1992).  Once the presumption of 
regularity has been rebutted by clear evidence, however, the 
burden of proof shifts to the VA to show actual compliance 
with the administrative procedure. 

The Board indicated that in order to rebut the presumption 
of administrative regularity in this case, the evidence must 
show that the Veteran called or otherwise contacted the RO 
in May or June 2002.  Other than his own statements, the 
Board highlighted that there was nothing in the record 
showing that the Veteran had called and reported the change 
in his marital status in 2002 as alleged.  The Board 
therefore found that there was insufficient evidence to 
rebut the presumption of regularity in RO operations.  
Accordingly, applying the presumption to this matter, the 
Board concluded that the Veteran did not notify the RO of 
his change in marital status in 2002. 

In January 2009, a list of contact dates and times from 2000 
to 2009 was associated with the record.  It did not show any 
contacts from the Veteran during 2002.  As noted above, the 
Veteran appealed the Board's decision to the Court.  A pro 
se informal brief dated in July 2009 was associated with the 
record.  The Court issued an unpublished order, containing 
questions concerning the Veteran's overpayment.  In a July 
2010 memo, an RO appeals coach informed the Court that the 
VA DMC had continuously collected a total amount of 
$4,572.00 from December 28, 2006, to November 9, 2009. 

In a Mandate dated in November 2010, the Court ordered that 
the August 2010 Memorandum Decision was final and not 
subject to further review.  When discussing the Veteran's 
contention that he called VA in May/June 2002 to inform VA 
of his divorce and remarriage, the Court noted that the 
Board stated that there was no record of such contact but 
stated that the Board did not indicate whether a search of 
VA's telephone records was made.  In the August 2010 
Memorandum Decision, the Court also noted that the Board 
invoked a putative "presumption of regularity," presumably 
to the effect that any VA employees tasked with answering 
the telephone would follow proper procedures and give 
correct information.  In discussing the Board's decision, 
the Court stated that "research had disclosed no precedent 
in which the Court has applied any presumption of regularity 
to telephone interviews."  The Court also referenced the 
current version of the VA Adjudication Procedures Manual, 
M21-1-MR, citing the current provision with regard to 
general guidelines for conducting telephone interviews which 
indicates that beneficiaries are not required to advise VA 
in writing of changes in dependency status, such as loss of 
dependent due to death, divorce, or annulment of a marriage, 
but a written statement from claimant is required to 
establish a dependent.  M21-1-MR, Part II, Chapter 3, 1, d. 
at 3-2.  The provisions also state that all information 
received during the interview should be completely 
documented on VA Form 119 (Report of Contact) or the 
equivalent, such as the Informal Conference Report of DRO's.  
M21-1-MR, Part II, Chapter 3, 1, c. at 3-2.  Although the 
Court acknowledged that the current version of the M21-1 did 
not establish what the instructions to telephone 
interviewers may have been in 2002 at the time of the 
alleged telephone notification, the Court also indicated 
that the notation that beneficiaries are not required to 
advise VA in writing of changes in dependency status sounds 
suspiciously like what the Veteran was told.  The Court set 
aside the Board's December 2008 decision and remanded the 
matter for the Board to clarify whether a search has been 
made in VA records for a Form 119 or equivalent that might 
establish the substance of the alleged telephone interview, 
and if not, to have such a search conducted.  The Court also 
instructed that if the Board intended to rely on the 
presumption of administrative regularity, it must 
investigate and show what procedures and instructions were 
in place in 2002 and establish the alleged regularity of 
those procedures. 

In a June 2011 Remand, the Board instructed the RO to 
attempt to locate a record of any telephone contact with the 
Veteran between April and June 2002 with regard to a change 
in his marital status, to include a search for any VA Form 
119 or equivalent.  The Board informed the RO that it would 
be of great assistance for the RO to address the procedures 
for storing and recording telephone conversations in the 
April to June 2002 time period.  In particular, the Board 
noted that the RO should provide the equivalent of the M21-
1MR manual provisions in place from April to June 2002 which 
addresses guidelines for handling and documenting telephone 
conversations.  In addition, the Board instructed the RO to 
provide the Veteran with the applicable laws and regulations 
pertaining to the matter of the propriety of the recovery of 
overpayments from his November 2001 divorce to March 1, 
2006. 

RO emails dated in June 2012 disclosed that phone calls 
coming into the phone unit were not recorded and that there 
was no phone log where claims numbers were recorded for 
posterity.  RO personnel indicated that a VA Form 119 was 
the only method the RO had in the past of recording 
information received by telephone and that the form was then 
sent upstairs to be associated with the file.  It was noted 
that they now they use VA Form 119 and MAP-D notes.

In the March 2013 SSOC, the RO provided a detailed analysis 
of the matter on appeal.  As an initial matter, the RO 
indicated that a thorough review was conducted in an effort 
to locate any record of the alleged 2002 telephone call.  
The search was noted to include all documents in the claims 
files, all available electronic records, and records of the 
Telephone Interviewing Unit at the St. Petersburg RO.  The 
RO indicated that no evidence was found of the Veteran 
having notified VA of his change in marital status.  The RO 
reported that it had included in the March 2013 SSOC the 
manual provisions for the conduct and recording of telephone 
interviews (both the current procedures manual M21-1MR and 
its predecessor, M21-1) and the applicable regulations 
pertained to the matter of propriety of the recovery of 
overpayments.  The RO ultimately determined that with the 
absence of any record of the alleged 2002 telephone call as 
well as the inconsistency of the Veteran's statements of 
record, it could not conclude that the Veteran placed the 
call to VA in 2002 as asserted.  It further found that the 
overpayment of additional dependency compensation was 
properly created and collected. 

In this case, the Veteran was notified from the outset in 
1999 that he was receiving an additional award for his 
second wife, that he must report any changes in number or 
status of dependents to the RO immediately, that it was his 
responsibility alone to do so, and that failure to do so 
would result in an overpayment.  From the notice sent by the 
RO in 1999, the Veteran should have understood that the 
burden was on him to promptly provide this information to 
the RO. 

Upon finding that the Veteran is responsible for providing 
updated status information directly to the RO, the Board 
turns to the validity of the debt for the $4,527.00, 
representing payments for the Veteran's second wife from the 
date of their divorce in November 2001 until February 2006 
(the date the RO was notified of the Veteran's divorce from 
his second wife, his marriage to his current third wife in 
April 2002, and the existence of a dependent stepson).  In 
this case, there is a dispute as to the date of receipt by 
the RO of notice of the Veteran's divorce from his second 
wife.  The Veteran has asserted that he notified VA in 2002 
via a telephone call to a toll free VBA information line and 
was advised that he did not need to provide any further 
information or paperwork. 

On remand, the Board was instructed to clarify whether a 
search had been made in VA records for a Form 119 or 
equivalent that might establish the substance of the alleged 
telephone interview in 2002.  The Board notes that two 
searches of contacts in 2009 and 2011 between the RO and the 
Veteran documented numerous contacts dated from 2000 to 2009 
but showed no contact with the Veteran in 2002.  Searches of 
all documents in the claims files, all available electronic 
records, and records of the Telephone Interviewing Unit at 
the St. Petersburg RO also did not show any evidence of the 
alleged telephone call in 2002.

The RO has thoroughly investigated and shown what procedures 
were in place in 2002.  An RO internal investigation 
documented by RO emails dated in June 2012 were associated 
with the record, showing that phone calls coming into the 
phone unit at the St. Petersburg RO were not recorded and 
that there was no phone log where claims numbers were 
recorded for posterity.  RO personnel further indicated that 
a VA Form 119 was the only method the RO had in the past of 
recording information received by telephone and that the 
form was then sent upstairs to be associated with the file.  
As has been found on multiple occasions, a VA Form 119 was 
not associated with the record in 2002.  

In conducting quality telephone interviews, the VA Manual 
M21-1 (in effect in 2002) indicated that VA employees will:  
(a) Answer calls promptly.  (b) Identify themselves by name.  
(c) Provide clients with complete accurate information.  (d) 
Comply with Privacy Act, Freedom of Information Act, and ADP 
security requirements.  (e) Gather sufficient information 
from the caller to answer questions and develop any issues 
indicating potential eligibility for a benefit or benefits.  
(f) Make full use of ADP capabilities to resolve issues 
before completing a veterans assistance inquiry.  (g) 
Discuss any related VA or non-VA benefits.  (h) Control the 
interview, avoiding irrelevant discussions and topics not 
pertinent to the interview.  (i) Exhibit a caring and 
courteous attitude in an objective, understanding manner. 
(j) Avoid using technical jargon.  VA Manual M21-1, Part 
VII, Chapter 2, Para. 2.09.  

Additional reference was made to the section of the VA 
Manual M21-1 that deals with issuance of VA Form 119 in 
effect in 2002.  It was indicated that the purpose of VA 
Form 119, Report of Contact, was to record discussions 
involving potentially controversial matters between VA 
employees and claimants, their representatives, or other 
persons.  It is also used to record information or facts 
received by a VA employee which may supplement the record or 
which may have future use to justify or disprove allegations 
that information given by the VA employee was incorrect, 
incomplete, or otherwise not in accordance with law, 
regulations, or procedures.  The M21-1 showed that each 
report of contact submitted by RO personnel must clearly set 
forth the conditions or situation brought out during the 
interview.  In addition, it would show action taken by the 
employee as a result of the interview.  Use of the form 
included, but was not limited to, the following:  (1) 
Controversial matters when additional evidence is required; 
(2) Complaints regarding an action taken or lack of service; 
(3) Explanations of awards, disallowances, or related 
circumstances in cases where the claimant does not appear to 
be satisfied; (4) First notices of death of a beneficiary 
when there is reason to believe the VA has not been notified 
otherwise; (5) Explanations of facts or information which 
might influence a claimant's entitlement, either adversely 
or favorably, to certain VA benefits; (6) Special situations 
for the purpose of effecting an immediate check issuance; 
(7) Interviews with patients at medical center locations 
concerning entitlement to RH, Servicemen's Group Life 
Insurance (SGLI), or Veterans Group Life Insurance (VGLI) 
insurance when the patient indicates he or she does not wish 
to apply (see also M27-1, pt. I, ch. 11); (8) Changes of 
beneficiary by patients in VA medical centers (see M27-I, 
pt. III, ch. 11); and (9) Information which should be 
included in the BDN, such as SSN or birthdate.  VA Manual 
M21-1, Part I, the Adjudication Procedure VA Manual M21-1, 
Part VII, Chapter 5, Para. 5.05.  

As discussed above, searches of telephone records and 
investigation of the applicable provisions of the M21-1 as 
well as the internal RO procedures at the time of the 
alleged telephone call by the Veteran in 2002 were conducted 
as instructed in the August 2010 Memorandum Decision.  
However, the Board does not intend to rely on the 
presumption of regularity of administrative process in this 
decision.  Assuming without deciding that the Veteran did 
place a telephone call in 2002 to VA regarding his divorce 
and remarriage and that he was given bad advice regarding 
additional compensation for dependents by a VA employee, the 
Board must point to the Court's holding in McTighe v. Brown, 
7 Vet. App. 29, 30 (1994).  In that case, the Court found 
that "payment of government benefits must be authorized by 
statute; therefore, erroneous advice given by a government 
employee cannot be used to estop the government from denying 
benefits."  The Board finds that the Veteran's argument 
regarding erroneous advice during an alleged telephone call 
to VA in 2002 must fail.  The Board has concluded that 
whether or not the Veteran did notify the RO of his change 
in marital status via telephone in 2002, the Board has no 
discretion to afford benefits where basic eligibility is not 
established under the law.  See also Harvey v. Brown, 6 Vet. 
App. 416, 424 (1994) (the remedy for breach of an alleged 
obligation cannot involve payment of benefits where the 
statutory eligibility requirements for those benefits are 
not met).  As the marital status information concerning the 
divorce of his second wife and marriage to his current third 
wife was first received in February 2006, the Board 
continues to find that the RO has correctly assigned an 
effective date of March 1, 2006, for additional compensation 
for the Veteran's dependents, specifically his current third 
wife and stepson.  The Board continues to find that that 
there was no legal basis for granting an earlier effective 
date in 2002 for additional compensation for dependents as 
requested by the Veteran. 

The Veteran has not disputed the specific monthly amounts 
used in calculating the overpayment or filed a notice of 
disagreement with the May 2007 COWC denial of his request 
for waiver of overpayment.  The RO has provided a detailed 
accounting of payments made to the Veteran on behalf of the 
second spouse from the November 2001 divorce to March 1, 
2006, that accounts for the overpayment of $4,527.00 as well 
as provided a detailed accounting of payments made by the 
Veteran for recovery of that overpayment.  In essence, it is 
the Veteran's contention that the payments on behalf of his 
second spouse and his current third spouse should be 
considered together, and that the period during which he was 
not married to either spouse is only a few months.  However, 
the Board notes that each spouse is treated separately under 
VA law.  The overpayment of benefits in the amount of 
$4,572.00 due to the removal of the Veteran's second spouse 
as a dependent, effective December 1, 2001, was validly 
created and properly recovered.  Further, the propriety of 
the effective date of the addition of the Veteran's current 
third wife as a dependent, to include entitlement to an 
earlier effective date, has already been addressed above.  
The Board has repeatedly found that the RO correctly 
assigned an effective date of March 1, 2006, for additional 
compensation for the Veteran's current third wife and 
stepson, as it has now clearly determined the claim for 
dependency was first received in February 2006.  

In summary, the Veteran divorced his second wife in November 
2001 and married his current third wife in April 2002.  
Based on the foregoing discussion, the Board has determined 
that there is no evidence of record that the Veteran 
notified VA of his change in marital status until February 
2006.  The Board has thoroughly considered the Veteran's 
contentions; however, the legal criteria governing the 
creation and recovery of overpayments as well as assignment 
of effective dates for additional compensation based on 
dependency are clear and specific, and the Board is bound in 
its decisions by the statutes enacted by the Congress of the 
United States and VA regulations issued to implement those 
laws.  See 38 U.S.C.A. § 7104(c).  See generally Owings v. 
Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. 
Derwinski, 3 Vet. App. 171, 172 (1992) (the Board must apply 
"the law as it exists . . . .").  As the law in this case is 
dispositive, the claim must be denied based on a lack of 
entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 
426, 430 (1994).  Accordingly, the Board concludes that the 
that the Veteran is not entitled to an effective date prior 
to March 1, 2006, for the grant of additional compensation 
based on dependents and that the recovery of overpayments 
from the additional dependency compensation received from 
the November 2001 divorce to March 1, 2006, was proper. 


ORDER

Entitlement to an earlier effective date prior to March 1, 
2006, for additional compensation based on dependents, to 
include the propriety of the recovery of overpayments from 
the November 2001 divorce to March 1, 2006, is denied. 



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs