Citation Nr: 1643649 Decision Date: 11/17/16 Archive Date: 12/01/16 DOCKET NO. 10-32 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether the creation of the $3,266 debt created by the Veteran's change in dependency status is valid. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1971 to October 1978 and from January 1980 to August 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Roanoke, Virginia. This decision determined an overpayment was created by the Veteran's divorce from his spouse in March 2006. The Veteran has contested this finding, resulting in this appeal. The issue of waiver for overpayment has been raised by the record in the VA Form 9 received in July 2011, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDINGS OF FACT 1. The Veteran's divorce from his first spouse became final on March 27, 2006; at that time, he was receiving VA compensation benefits at the rate of a married veteran with one dependent. 2. The Veteran married his second wife on April 6, 2006. 3. VA received notification on February 2, 2010 of the Veteran's March 2006 divorce and April 2006 remarriage. CONCLUSION OF LAW The debt of VA disability compensation benefits in the amount of $3,266 is valid. 38 U.S.C.A. §§ 1115, 1135, 5112 (West 2014); 38 C.F.R. §§ 3.1, 3.401 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. Because the facts in this case are not in dispute and the law is dispositive in this appeal, the Board concludes that the VCAA is inapplicable. See generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Mason v. Principi, 16 Vet. App. 129 (2002). The Veteran challenges the validity of a debt that has been charged to him for overpayment of compensation due to a failure by the Veteran to timely notify VA of his divorce from his first wife and subsequent marriage to his second wife. The essential facts are not in dispute, and have been acknowledged by the Veteran. Effective March 27, 2006, the Veteran divorced his spouse, B.S. At that time, he was receiving VA compensation for a 50 percent disability rating paid at the rate of a married veteran with one dependent (his spouse). On April 6, 2006, the Veteran married J.M.F. Notice of the Veteran's March 2006 divorce and subsequent April 2006 marriage were not provided to VA until a "Status of Dependents Questionnaire" was received by VA on February 2, 2010. Based on the Veteran's March 2006 divorce, his compensation was changed from the married rate to the single rate from March 31, 2006, to March 1, 2010, the date the Veteran's new spouse, J.M., was added to his award. Because of these changes, an overpayment of $3,266 was created for the period between March 2006 and March 2010. 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; 38 C.F.R. § 1.962. An overpayment may arise from virtually any benefits program administered pursuant to VA law. 38 C.F.R. § 1.956(a). Whenever VA finds that an overpayment of benefits has been made to a payee, the amount of such overpayment shall constitute a liability of such payee to the United States and may be recovered in the same manner as any debt. 38 U.S.C.A. § 3685(a), (c); 38 C.F.R. § 21.7644. The issue of the validity of a debt is a threshold determination that must be made prior to a decision on a request for waiver of the indebtedness. Schaper v. Derwinski, 1 Vet. App. 430 (1991). In order for the Board to determine that the overpayment was not properly created, such that the debt was not valid, it must be established that the veteran was legally entitled to the benefits in question or, if the veteran was not legally entitled, then it must be shown that VA was solely responsible for the veteran being erroneously paid benefits. Administrative errors include all administrative decisions of entitlement, whether based upon mistake of fact, misunderstanding of controlling regulations or instructions, or misapplication of law. VAOPGPREC 2-90 (July 17, 1989); 55 Fed. Reg. 27757 (1990). 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) (sole administrative error is not present if the payee knew, or should have known, that the payments were erroneous). Thus, a finding of sole administrative error requires not only error on the part of VA, but that the beneficiary was unaware that the payments are erroneous. In the present case, the facts do not support and the Veteran does not allege any sort of administrative error on the part of VA. In the July 2011 VA Form 9 as well as other documents, the Veteran acknowledges that he did not provide VA with notification of the March 2006 divorce and April 2006 marriage until February 2010. He also does not allege he was misled or otherwise misinformed regarding his obligation to notify VA of any dependency changes. The Veteran asserts that because he remarried within a few days after his divorce became final, he should have been entitled to VA compensation at the married with one dependent payment rate from the date of his April 2006 remarriage. While the Board is sympathetic to the Veteran's claim but unfortunately, the Board must deny the claim. VA regulations state that the effective date of additional compensation based on dependency status will be the date of marriage, if evidence of the event is received within one year; otherwise, it will be date of notice of the event or of the dependent's existence. See 38 C.F.R. § 3.401. In this case, there is no evidence that the Veteran notified VA of his second wife's dependency prior to February 2010. Although they were indeed legally married, the regulations concerning effective dates hinge upon the date of notification, unless the claim was received within one year of the marriage. In other words, there is a one year grace period to notify VA of the change. After that period, the effective date is the date of notification. Simply stated, the Board lacks the legal authority to award an earlier effective date for the payment of the Veteran's compensation benefits at the higher rate, or otherwise waive the legal requirement that he notify VA in a timely fashion of any dependency changes. Based on the forgoing, the Board finds that the overpayment was not the result of sole administrative error because the Veteran bore the responsibility to notify VA of any dependency changes. The creation of the overpayment was, therefore, valid. As noted in the introduction, the Veteran appears to have asserted a claim for waiver of this overpayment and the Board has referred this issue for adjudication. As this issue is not currently before the Board, the Board makes no determination regarding its merit. For the foregoing reasons, the Board finds that the creation of the overpayment in the amount of $3,266 was proper, and the Veteran's appeal must be denied. ORDER The creation of the debt of $3,266 was proper. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs