Citation Nr: 1429862 Decision Date: 07/02/14 Archive Date: 07/10/14 DOCKET NO. 10-36 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether an overpayment of apportioned compensation benefits in the amount of $25,600.00 was properly created. ATTORNEY FOR THE BOARD J. Nilon, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to August 1962. The present appellant is the Veteran's former spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an action in July 2008 in which the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida terminated the appellant's monthly apportionment from the Veteran's compensation benefits effective from March 1, 2003, creating an overpayment in the calculated amount of $25,600.00. The appellant asserts on appeal that the overpayment was not properly created; she has not timely requested a waiver of the debt resulting from such overpayment, even with a sympathetic review of the record. Accordingly, the Board will address the narrower issue of whether the overpayment was correctly created and will not consider whether a waiver of the debt is warranted. FINDINGS OF FACT 1. The appellant and the Veteran were divorced in February 2003; VA first became aware of the divorce when the Veteran reported it in May 2008. 2. During the period March 2003 through May 2008, the appellant received apportioned benefits from the Veteran's disability compensation in the amount of $400.00 per month. 3. Due to the appellant's failure to notify VA of her divorce from the Veteran, she was overpaid in the amount of $25,600.00 to which she was not legally entitled. CONCLUSION OF LAW The debt created by overpayment of apportioned compensation benefits in the amount of $25,600.00 is valid. 38 U.S.C.A. §§ 5307, 5313 (2002 & Supp. 2013); 38 C.F.R. §§ 3.450, 3.665 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West. 2002 & Supp. 2013) provides that VA will assist the claimant in obtaining evidence necessary to substantiate a claim. The VCAA and the implementing regulation do not apply in waiver cases because the statutory right to request waiver of recovery of indebtedness within Chapter 53 of Title 38 of the United States Code contains its own notice provisions. See Lueras v. Principi, 18 Vet. App. 435 (2004) citing Barger v. Principi, 16 Vet. App. 132 (2002); see also 38 U.S.C.A. § 5302 (West 2002). Nevertheless, the Board finds that the RO has explained to the appellant the bases for the finding that the debt is valid. The appellant has been advised of her entitlement to a hearing before the RO's hearing officer and/or before a Member of the Board, but she declined such a hearing. The appellant has not advised the Board of any existing evidence not already of record that should be obtained before the appeal is adjudicated. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the issue on appeal. Applicable Laws and Regulations For the purposes of compensation, "marriage" means a marriage valid under the laws of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. § 3.1(j). "Spouse" means a person of the opposite sex whose marriage to the veteran meets the requirements of section 3.1(j). 38 C.F.R. § 3.350(a). All or any part of the compensation payable on account of any veteran may, if the veteran is not living with his or her spouse, be apportioned as may be prescribed by the Secretary. 38 U.S.C.A. § 5307(a); 38 C.F.R. § 3.450(a). Any person who is entitled to VA compensation and who is incarcerated in a Federal, State or local penal institution for a period in excess of 60 days for conviction of a felony, and who has service-connected disabilities rated at 20 percent of more, shall be paid not more than an amount equivalent to a 10 percent disability evaluation for the period beginning on the 61st day of such incarceration and ending on the day such incarceration ends. 38 U.S.C.A. § 5313(a)(1)(A); 38 C.F.R. § 3.665(a), (d). However, all or any part of the compensation not paid to a veteran by reason of subsection (a) may, as appropriate in an individual case, be apportioned under the same terms and conditions as are provided under 38 U.S.C.A. § 5307 cited above. 38 U.S.C.A. § 5313(b)(1). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Evidence and Analysis The Veteran is service-connected for disabilities having a combined rating of 80 percent. As documented in contemporaneous newspaper reports that are associated with the claims file, in May 2000 the Veteran entered the home of the appellant, who was then his estranged spouse, in violation of a restraining order. The Veteran stabbed both the appellant and her daughter multiple times before being shot and subdued by a responding police officer. The appellant submitted a request for apportionment in September 2000, stating the Veteran was currently incarcerated for the assault against her in May. The appellant asserted that the Veteran was providing no support to her and had not done so for some time. She cited her financial distress, including debts incurred by the Veteran for which she was being pursued by creditors and her own medical bills for injuries related to the assault. In January 2001, the RO issued a Special Apportionment Decision that apportioned $400.00 per month (19 percent of the Veteran's VA disability compensation) to the appellant effective from October 1, 2000, based on a determination that the Veteran was not providing any support to the appellant and that the apportionment would not work a hardship on the Veteran. The Veteran was incarcerated at the time but had not yet been convicted. The accompanying notice of award to the appellant specifically advised her, "It is most important that you keep this office informed of any change in the status of the person or persons for whom the benefits are authorized to avoid a possible overpayment which is subject to recovery." In June 2002, the Veteran was convicted of two counts of attempted first degree murder and one count of burglary while armed. He was sentenced to 25 years imprisonment and began serving his sentence in July 2002. In January 2003, the Veteran's benefit was reduced to $103.00 per month effective from August 13, 2002, with the remaining 90 percent withheld as an incarcerated felon in accordance with 38 C.F.R. § 3.665(a), (d). However, the monthly $400.00 apportionment to the appellant continued to be paid, in accordance with 38 C.F.R. § 3.665(e). The Veteran was divorced from the appellant in February 2003, but there is no indication in the record that the RO was notified of the divorce at or near that time period. In August 2007, the Veteran wrote to the RO requesting the apportionment to the appellant be stopped because, in his words, she "is working and their [sic] are no dependents or hardships that would require her to be dependent on this money." The Veteran referred to the appellant as his wife "soon to be devorced [sic]." The Veteran remarried in April 2008, and in May 2008, he submitted a request for apportionment in favor of his new spouse, enclosing a copy of the February 2003 divorce decree. Thereafter, in May 2008, the RO notified the appellant of its intent to terminate her $400.00 monthly apportionment effective from March 1, 2003, and that such termination would create an overpayment of benefits. In July 2008, the RO issued the action on appeal, which consummated the termination of apportionment effective from March 1, 2003, the first day of the month following her divorce from the Veteran. The appellant submitted a notice of disagreement (NOD) later the same month. In July 2008, shortly after the appellant submitted her NOD to the RO, the VA Debt Management Center in St. Paul, Minnesota sent a letter to the appellant notifying her that the overpayment had been calculated to be in the amount of $26,500.00. The letter advised the appellant of her right to dispute the debt and her right to request waiver. In her NOD, and in her September 2010 substantive appeal, the appellant stated she understands and accepts the decision to terminate monthly benefits but disagrees with the charge for overpayment. She stated that she informed VA in writing of the divorce, along with her various creditors; she did not receive a response from VA and assumed she had continued to receive monthly compensation due to the circumstances surrounding the Veteran's imprisonment. The appellant stated she does not understand why VA waited five years to take action, since she has not changed her address in that time. She also cited the physical and emotional residuals that she and her daughter continue to suffer due to the Veteran's attack on them, and her own ill health and expenses. Review of the evidence above clearly demonstrates that the appellant was divorced from the Veteran in February 2003, so her legal entitlement to apportionment from his VA disability compensation ended at that time. The issue on appeal, simply, is whether she received VA benefits to which she was not entitled, and the Board finds that she did so. The Board accordingly finds the overpayment was correctly created. The appellant argues on appeal that she notified VA of her divorce from the Veteran at the time it happened, thus asserting that VA is solely at fault in creating the overpayment. However, there is no evidence in the claims file that such notice, if sent, was received by the RO. There is presumption of regularity that official act of public officers will be properly discharged. See, e.g., Ashley v. Derwinski, 2 Vet. App. 207 (1992). If the appellant had notified VA of the February 2003 divorce, such notice would have been placed in the claims file and acted on. The appellant has not provided evidence sufficient to rebut such presumption, such as a certified mailing receipt. Thus, the Board finds that no notice was provided by the appellant to VA regarding the divorce. The appellant was clearly notified at the time the apportionment was granted of her responsibility to notify VA of any change in status, and her continued receipt of $400.00 per month should have made her aware that VA was not informed of her divorce. She asserts on appeal that she believed her benefits had continued after divorce due to the unique circumstances of her case (presumably, that VA was continuing to pay her out of the Veteran's disability compensation in recognition that the Veteran had caused her injuries), but such a belief is not reasonable given that VA is not empowered to redistribute a veteran's disability compensation to redress injuries he may have inflicted on others. Further, the Veteran's reference to the appellant in August 2007 as his soon-to-be-divorced spouse gave the RO every reason to believe that the appellant and the Veteran were still married. The appellant also asserts on appeal that collection of the debt would cause her to suffer undue financial hardship. The respective faults of VA and the payee in creation of a debt, and the impact of collection of a debt on the payee, are questions that are considered in determining whether recovery of indebtedness should be waived as being against equity and good conscience. See 38 C.F.R. § 1.963(a). However, a request for waiver under that section will only be considered if made within 180 days following the date of notice of indebtedness issued by the VA; see 38 C.F.R. § 1.963(b). Review of the file shows no correspondence from the appellant between issuance of the July 2008 notification of debt and the September 2010 substantive appeal, so the Board does not find a timely request for waiver within the period stipulated in the regulation. While the Board is sympathetic toward the appellant, the Board is bound by law, and its decision is dictated by the relevant statutes and regulations. Moreover, the Board is without authority to grant the benefit claimed on appeal simply because it might perceive such a grant to be equitable. See Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In that regard, "no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Based on the evidence and analysis above, the Board finds the overpayment of apportioned compensation benefits in the amount of $25,600.00 was properly created. Accordingly, the appeal must be denied. Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. ORDER The Board having found that an overpayment of apportioned compensation benefits in the amount of $25,600.00 was properly created, the appeal in that regard is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs