Citation Nr: 18146817 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 18-28 346 DATE: November 1, 2018 REMANDED The appeal challenging the validity of debt resulting from a declared overpayment of spousal dependency benefits in the amount of $23,868 is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1979 to March 1990. Upon his discharge from active service, the Veteran applied for Veteran’s compensation benefits. Compensation was granted and a 60 percent combined disability rating was assigned in a September 1990 RO decision. He was informed the same month that he was eligible for an additional dependency allowance for his wife and child. In response to this notice, he submitted a copy of his marriage certificate showing he had married his wife, V., in December 1982. He also submitted a birth certificate to establish his child’s birth. The RO therefore began paying a dependency allowance based upon a wife and child. VA continued to pay a spousal dependency allowance for many years based upon the assumption that the Veteran remained married. VA reminded the Veteran upon several occasions between 2002 and 2008 that he was required to notify VA of any marital status changes or changes in his dependents. In June 2016, VA informed the Veteran that VA is required to verify his dependents and requested that he submit a current Status of Dependents Questionnaire. He did not respond to this request. In August 2016, VA proposed to reduce his spousal dependency benefit effective as of November 1990, when he had initially provided evidence of his marriage to VA. The Veteran did not respond to this letter either. In November 2016 the RO implemented the proposed reduction. The VA’s Debt Management Center calculated the debt resulting from this reduction between 1990 and 2016 in the amount of $23,868 and informed the Veteran that his monthly check would be withheld beginning in April 2017 until this amount of money was recouped. The Veteran questioned the validity of the debt in correspondence of May 2017, stating that he had supported his wife until 2001. In May 2018, he submitted an updated Status of Dependents Form in which he stated he had divorced his wife in April 2001. He also asserted that having his check withheld was causing him severe financial hardship. The law provides that an additional amount of compensation may be payable for a spouse, child, and/or dependent parent where a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling. 38 C.F.R. § 3.4(b)(2). An effective date of the award of any benefit or any increase therein by reason of marriage shall be effective from the latest of the following dates: (1) date of claim, meaning the following, listed in their order of applicability: (i) 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 1 year of the event; otherwise; (ii) date notice is received of the dependent’s existence, if evidence is received within 1 year of VA’s request; (2) date dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within 1 year of notification of such rating action; or (4) date of commencement of veteran’s award. 38 C.F.R. § 3.401(b). If a veteran and his or her spouse divorce, the veteran’s VA compensation award is reduced by the amount that was being paid on behalf of the dependent spouse. The effective date of discontinuance of the spouse’s compensation award, for divorce or annulment, is the last day of the month in which the divorce or annulment occurred. 38 U.S.C. § 5112 (b)(2); 38 C.F.R. § 3.501 (d)(2). In this case, the Veteran divorced without informing the VA. He also failed to respond to VA’s requests for additional information regarding the status of his dependents, although he had been notified that it was his responsibility to inform VA of any changes to his marital status. This appeal must be remanded primarily to request a copy of the Veteran’s divorce decree. As the evidence stands, VA only has the Veteran’s statement as to when his divorce became final. After establishing when the Veteran’s divorce was final, the RO will need to revisit the determination regarding the validity of the debt. Although it is clear that the Veteran received a spousal dependency allowance for many years when he was not married, it is not clear why the RO chose to declare the overpayment debt for the entire time frame that the Veteran received the spousal dependency allowance. He was entitled to the allowance from 1990 until the point when his divorce was final. After that point, he was not entitled to receive the allowance. If the RO had another reason for reducing the dependency allowance back to 1990, it is not obvious to the Board’s review at this time, and must be better explained upon remand. The matter is REMANDED for the following action: 1. Obtain a copy of the Veteran’s certificate of divorce. The Veteran is informed that his failure to cooperate with this request will necessarily result in upholding the original declaration of the debt. 2. After receiving satisfactory evidence confirming the date of the Veteran’s divorce, the RO should revisit the question of the validity of the debt, to include all related steps, such as requesting the Debt Management Center to recalculate the amount of the debt. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Heather J. Harter