Citation Nr: 1746973 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 15-15 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether the pension debt created beginning in December 2013, in the amount of $1,962.00, was validly created, and if so, whether a waiver of the valid debt is proper. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from January 1969 to November 1970, during which time he served in the Republic of Vietnam and was awarded a Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 determination by the Department of Veterans Affairs (VA) that his pension amount was being reduced and that he had an overpayment starting in December 2013. The Veteran timely appealed whether the debt was validly created and if so, whether a waiver of the debt was proper. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Although the Veteran was married to D. throughout the appeal period and no divorce had been procured, the Veteran was not legally entitled to a spousal dependency allowance, because the Veteran and D. did not live together, nor did the Veteran reasonably contribute to the support of D. 2. In his June 2013 VA Form 21-526 as well as the February 2014 VA Form 21-527EZ, the Veteran correctly indicated that he was married but separated and not living with D. 3. The processing of the incorrect pension amount in the March 2014 award, which led to overpayment of $327.00 for six months, was due to the sole administrative error by VA in this case, and the Veteran did not contribute in any way, either in action or failure to act, to that administrative error. CONCLUSION OF LAW The pension debt of $1,962.00 that was created was not valid. 38 U.S.C.A. §§ 5107, 5111(a), 5112(b)(2)(9)(10) (West 2014); 38 C.F.R. § 3.500(b) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Agency of Original Jurisdiction (AOJ) awarded the Veteran special monthly pension for aid and attendance with a dependent spouse, at the rate of $1,204.00 a month, beginning in December 2013; the rate without a dependent spouse is $877.00 a month-a difference of $327.00. The Veteran was paid the rate of $1,204.00 for six months, before he began receiving $877.00 in June 2014. The six months totaled $1,962.00 in overpayment. In the April 2015 Statement of the Case, the AOJ listed the amount in controversy as $1,692.00. The Board is unable to discern where the discrepancy in the purported amount of the debt resulted from, although it would appear that the AOJ transposed the digits 6 and 9 in the Statement of the Case. Additionally, it appears that VA recouped $981.00 and the Debt Management Center recouped $981.00, for a total amount of $1,962.00 in recouped benefits. Thus, the amount in controversy at this time is actually $1,962.00. Regardless, in this case, the apparent reason for the creation of the debt is VA's determination that the Veteran should not have been paid for the dependent spouse. The Board notes that a July 1971 marriage license is of record between the Veteran and D; however, in the Veteran's June 2013 application, the Veteran indicated that he was married to D. in April 1970, although he was separated and they did not live together due to marital problems. More importantly, in his February 2014 claim for pension benefits, VA Form 21-527EZ, the Veteran indicated that he was married to D., although he specifically also stated that they were separated and did not live together. In other February 2014 statements, the Veteran noted that he was married to D., but that they were separated. The Veteran also indicated that he was living with a significant other, B.V., and her daughter, S.L.N., both of whom were his caretakers. In May 2014 statements, the Veteran and B.V. both asserted that the Veteran was unaware that he had been paid for his spouse, D., as he had taken care to include on his applications and forms that they had been separated for over 10 years. In subsequent statements, and in some medical records, it is noted that the Veteran is still married, although he had been separated from his spouse, D.; it does not appear that the Veteran and D. have procured a divorce, although he does state that he does not pay for any of D.'s living expenses. In this case, although the Veteran is married and a divorce has not been procured, the Veteran was not legally entitled to a spousal dependency allowance because D. and the Veteran did not live together, nor is the Veteran reasonably contributing to the support of D. See 38 U.S.C.A. § 1521(b), (c) (West 2014). Under relevant law and VA regulations, the effective date of discontinuance of compensation to a veteran for a dependent spouse is the last day of the month in which the divorce or annulment occurred. 38 U.S.C.A. § 5112(b)(2); 38 C.F.R. § 3.501(d)(2). An award of additional compensation payable to a veteran on account of marriage will be the date of the veteran's marriage, if evidence is received within one year of the date of the event. Otherwise, the effective date for additional compensation based on marriage will be the date that notice of the marriage was received if the evidence is received within one year of the VA request. 38 C.F.R. § 3.401(b)(1). Payment of monetary benefits based on an increased compensation award may not be made to an individual for any period before the first day of the calendar month following the month in which the increased award became effective. 38 U.S.C.A. § 5111(a). The effective date of a reduction or discontinuance of pension by reason of an erroneous award based solely on administrative error or error in judgment shall be the date of last payment. 38 U.S.C.A. § 5112(b)(10). Under relevant law and regulations, 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 or her failure to act must have contributed to payment pursuant to the erroneous award. 38 U.S.C.A. § 5112(b)(9), (10) (West 2014); 38 C.F.R. § 3.500(b)(2) (2016). The Board concludes that from December 2013 to June 2014, the veteran was paid $1,962.00 in additional disability pension benefits for a dependent spouse due to sole administrative error on the part of VA, without the veteran's knowledge that it was erroneous. Thus, the RO's decision to adjust the veteran's pension award effective December 2013 to June 2014 was improper. The overpayment of disability compensation benefits for that time period, in the amount of $1,962.00, was due to sole administrative error on the part of VA without knowledge of the veteran, and thus, is not a valid debt to VA. 38 U.S.C.A. §§ 5107, 5111(a), 5112(b)(10); 38 C.F.R. §§ 3.401(b)(1), 3.500(b), 3.501(d)(2). ORDER The pension debt of $1,962.00 that was created was not valid; the appeal is granted to this extent, and the Board need not reach the merits of whether a waiver of overpayment is warranted. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs