Citation Nr: 18147404 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 16-34 058 DATE: November 6, 2018 ORDER The calculated amount of retroactive Dependency and Indemnity Compensation (DIC) benefit payments made to the appellant were proper. FINDINGS OF FACT 1. The appellant was awarded survivor (nonservice-connected death) pension benefits effective from April 1, 2009. 2. A September 2014 VA decision determined that the appellant had been overpaid benefits in the amount of $44, 075. 3. An October 2014 VA determination granted waiver of collection of an overpayment created as a result of the appellant’s unreported income in the amount of $44,075. 4. A January 2016 rating decision (effectuating a Board decision) granted entitlement to DIC benefits effective from March 4, 2009. 5. The calculated amount of DIC benefits due from April 1, 2009, to January 31, 2016, was $98,205.42; however, after subtracting the calculated amount of survivor pension benefits paid from April 1, 2009, to August 31, 2014 of $44,075 and prior to a reduction for attorney fees, the amount due and payable to the appellant was 54,130.42. CONCLUSION OF LAW The payment of DIC benefits ($98,205.42) without offsetting or adjusting the award by the amount of prior survivor pension benefit payments ($44,075) would violate the concurrent or duplication of benefit payment prohibitions. 38 U.S.C. §§ 1311, 5304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is the surviving spouse of the Veteran who served on active duty from September 1962 to September 1965. The Veteran died in September 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision by the St. Paul, Minnesota, Pension Management Center, Regional Office (RO), Department of Veterans Affairs (VA). 1. Whether the calculated amount of retroactive DIC benefit payments was proper. VA law provides that DIC shall be paid to a surviving spouse at the monthly rate of $ 1,154. 38 U.S.C. § 1311(a)(1) (2012); 38 C.F.R. § 3.10 (2018). Improved death pension is payable to a veteran’s surviving spouse or child because of the veteran’s nonservice-connected death. Payments are made monthly unless the amount of the annual benefit is less than 4 percent of the maximum annual rate payable to a veteran under 38 U.S.C. § 1521(b), in which case payments may be made less frequently than monthly. 38 C.F.R. § 3.3 (2018). There shall be no recovery of payments (or any interest thereon) or overpayments (or any interest thereon) of any benefits under any of the laws administered by the Secretary whenever the Secretary determines that recovery would be against equity and good conscience. 38 U.S.C. § 5302(a) (2012). VA regulations also provide that there shall be no collection of an overpayment, or any interest thereon, which results from participation in a benefit program administered under any law by VA when it is determined by a regional office Committee on Waivers and Compromises that collection would be against equity and good conscience. 38 C.F.R. § 1.962 (2018). VA statutes provide that, except as provided in section 1414 of title 10, United States Code, or to the extent that retirement pay is waived under other provisions of law, not more than one award of pension, compensation, emergency officers', regular, or reserve retirement pay, or initial award of naval pension granted after July 13, 1943, shall be made concurrently to any person based on such person's own service or concurrently to any person based on the service of any other person. 38 U.S.C. § 5304(1) (2012) (emphasis added). The United States Federal Circuit Court has held that the concurrent receipt prohibition passes rational basis scrutiny. See Howard v. United States, 354 F.3d 1358, 1362 (Fed. Cir. 2004). Except as provided in subsection (b), no person eligible for dependency and indemnity compensation by reason of any death occurring after December 31, 1956, shall be eligible by reason of such death for any payments under (1) provisions of law administered by the Secretary providing for the payment of death compensation or death pension, or (2) subchapter I of chapter 81 of title 5, United States Code. 38 U.S.C. § 1317(a) (2012). A surviving spouse who is eligible for dependency and indemnity compensation may elect to receive death pension instead of such compensation. 38 U.S.C. § 1317(b). VA law provides that a claimant may receive only DIC or death pension benefits, but not both. See Gantt v. Principi, 16 Vet. App. 89, 94 (2002). Payments from the Federal Treasury must be authorized by statute and government employees may not make obligations which are beyond the scope authorized by statute. See Smith v. Derwinski, 2 Vet. App. 378, 379 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 424, 110 S. Ct. 2465, 2471, 110 L. Ed. 2d 387 (1990); 31 U.S.C. § 1341(a)). In this case, the appellant contends that she is entitled to retroactive DIC benefit payments not reduced or offset by an amount of VA survivor pension benefit payments she received and for which VA collection was waived when those benefits were found to have created an overpayment. She asserts that the waiver of overpayment recovery was forgiveness of her indebtedness to VA and that the duplication of benefits prohibition is not applicable in her case. The specific benefit payment amount calculations are not in dispute. Records show the Veteran died in September 2004. A June 2009 VA determination established entitlement to survivor (nonservice-connected death) pension benefits effective from April 1, 2009. In correspondence dated in September 2014 VA notified the appellant that she had been overpaid benefits in the amount of $44, 075. An October 2014 VA determination granted waiver of collection of an overpayment created as a result of the appellant’s unreported income in the amount of $44,075. A subsequent November 2015 Board decision granted entitlement to DIC benefits under the provisions of 38 U.S.C. § 1151 for the cause of the Veteran’s death due to VA medical treatment. A January 2016 rating decision established entitlement to DIC benefits effective from March 4, 2009. VA records show that a January 2015 DIC award letter reported that the calculated amount of DIC benefits due from April 1, 2009, to January 31, 2016, was $98,205.42 and that the calculated amount of survivor pension benefits paid from April 1, 2009, to August 31, 2014, was $44,075. The amount due and payable prior to a reduction for attorney fees was 54,130.42. Based upon the undisputed facts in this case, the Board finds the calculated amount of retroactive DIC benefit payments, $54, 130.42 ($98,205.42 less the amount of survivor pension paid of $44,075.00), was proper. VA law is clear that payments as a result of a veteran’s death may be made under the provisions for pension or compensation, but not both. The appellant contends that VA’s waiver of collection of an overpayment of survivor pension benefits was a forgiveness of the indebtedness created when she received payments in excess of an amount to which she was entitled. The Board finds no merit to her claim. Under 38 U.S.C. § 5302 and 38 C.F.R. § 1.962, such waivers stop collection or recovery efforts for the indebtedness but do not forgive or otherwise eliminate the debt. The fact that the appellant was paid $44,075 more than she was entitled was not forgiven or eliminated by the determination in equity and good conscious to waive collection or recovery. As such, the payment of DIC benefits without offsetting or adjusting the award by the amount of prior survivor pension benefit payments would violate the concurrent or duplication of benefit payment prohibitions. The law is dispositive in this case and the appeal is be denied because of the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Douglas, Counsel