Citation Nr: 1800676 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 17-20 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether an overpayment of benefits was validly created in the amount of $1,523.00 due to the removal of the Veteran's Spouse as a dependent, effective March 1, 2014. (The issues of entitlement to service connection for residuals of skin and throat cancer and for a knee disorder are the subject of a separate decision). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from November 1947 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision issued in January 2015 by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran had a hearing before a Decision Review Officer (DRO) in February 2017; a transcript of that hearing is associated with the claims file. The issue of waiver of overpayment has been raised by the record in a February 2015 statement, 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). Again, the issues of entitlement to service connection for residuals of skin and throat cancer and for a knee disorder are the subject of a separate Board decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The VA benefits overpayment of $1,523.00 was validly created. CONCLUSION OF LAW The VA benefits overpayment of $1,523.00 was properly created, and the debt is valid. 38 U.S.C. § 5112 (2012); 38 C.F.R. § 3.500 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Validity of Debt The Veteran contends that as he informed VA in a timely manner when his wife passed, any debt created when VA failed to remove her from his benefits was the fault of VA. For a determination that the overpayment was not properly created, such that the debt was not valid, it must be established that the claimant was either legally entitled to the benefits in question or, if the claimant was not legally entitled, then it must be shown that VA was solely responsible for the claimant 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 claimant neither had knowledge of nor should have been aware of the erroneous award. Further, neither the claimant's actions nor his or her failure to act must have contributed to payment pursuant to the erroneous award. 38 U.S.C. § 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 is unaware that the payments are erroneous. The Court noted that, "[s]tated another way, when an overpayment has been made by reason of an erroneous award based solely on administrative error, the reduction of that award cannot be made retroactive to form an overpayment debt owed to VA from the recipient of the erroneous award." Erickson v. West, 13 Vet. App. 495, 499 (2000). The Board will first turn to the question of whether the Veteran was entitled to the benefits he received. Prior to January 2015, the Veteran was in receipt of retired and disability pay as a Veteran with one dependent. Per the January 2015 VA letter, the Veteran had been in receipt of additional dependency benefits for his spouse J.E.H., effective August 15, 2016. VA removed her as a dependent, effective March 1, 2014, due to her death on February 9, 2014. A February 28, 2014, report of general information indicates that the Veteran notified VA of his spouse's death. The Board next turns to the question of whether such debt was due to sole administrative error by VA. VA was in error by paying additional dependency payments to the Veteran following his spouse's death after he had informed VA of that fact. However, the record shows that in June 2014, after the passing of the Veteran's wife, he was notified of the grant of additional benefits for aid and attendance for his spouse. The Veteran should have known that additional benefits for his deceased spouse were was erroneous. Given that the Veteran did not notify VA of its error in continuing to pay benefits for his spouse, including additional benefits for aid and attendance awarded following her passing, the Veteran clearly exhibited some fault in the creation of the debt. In view of the finding that the overpayment was not the result of sole administrative error on the part of VA, the Board finds that the AOJ's decision to recoup the debt was proper, as the debt was a valid debt to VA. Therefore, the AOJ's attempt to recover the total of $1,523.00 was proper. 38 U.S.C. § 5112(b)(9), (10); 38 C.F.R. § 3.500(b)(2); Jordan v. Brown, 10 Vet. App. 171 (1997). (CONTINUED ON NEXT PAGE) ORDER The overpayment of VA benefits of $1,523.00 is a valid debt and was properly created. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs