Citation Nr: 18147506 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 16-24 936 DATE: November 6, 2018 ORDER An overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $5,211.81 was not properly created; the appeal is granted. FINDINGS OF FACT 1. In a December 1978 letter, the Regional Office (RO) informed the Veteran that he was entitled to additional compensation benefits for a spouse and informed him that he should promptly inform VA of any change in the status of his dependents; he was notified that his award was amended in May 1981 to include a spouse and child, effective February 1980. 2. The Veteran reported a November 1999 divorce in December 1999; he again reported the divorce in an October 2007 VA Form 21-0538. 3. The subsequent notification letters from VA do not indicate whether the Veteran was receiving any additional compensation benefits for a spouse. 4. The RO retroactively adjusted the Veteran’s award of VA disability compensation benefits in May 2015 to remove a dependent spouse, effective December 1999; this action resulted in the creation of an overpayment. 5. The creation of the overpayment of compensation benefits in the amount of $5,211.81 was due to sole administrative error on the part of VA; the Veteran neither had knowledge, nor should have been aware, of the erroneous award of benefits for his spouse after their divorce and the error was not due to the Veteran’s actions or failure to act. CONCLUSION OF LAW The overpayment of VA compensation benefits in the amount of $5,211.81 was not properly created. 38 U.S.C. §§ 5110, 5111, 5112; 38 C.F.R. §§ 3.401, 3.501. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1964 to December 1967. This overpayment debt extends from a retroactive adjustment of VA compensation benefits due to the removal of the Veteran’s spouse from his award from December 1999 to May 2015. The Veteran contends that the creation of an overpayment debt was solely due to VA administrative error because he timely notified VA of his divorce and was unaware that VA did not adjust his compensation benefits Historically, the Veteran was notified in a December 1978 letter that he was entitled to increased compensation for dependents, was advised that payments of additional compensation for a spouse was to be discontinued upon divorce, and directed to report any change in marital status immediately. See 38 C.F.R. § 3.4(b)(2) (a veteran in receipt of compensation at the rate of 30 percent or more is entitled to additional compensation for a spouse, children and/or dependent parents). The Veteran returned a declaration of marital and dependency status in February 1980 and was notified in May 1981 that his award was amended to include additional compensation benefits for his spouse and child. A VA Form 21-0538, Status of Dependents Questionnaire, was received by VA on December 9, 1999, and reported that the Veteran divorced his spouse in November 1999. He again reported his divorce in an October 2007 VA Form 21-0538. The record does not indicate that the Veteran was since informed of whether his rate of payment included benefits for a spouse. Specifically, notification letters sent to the Veteran by VA in December 2009, January 2011, January 2012, January 2013, and December 2014 noted the monthly rate of his disability compensation benefits but did not indicate whether or not that compensation award included any dependents. Based on the above, the Board agrees with the Veteran’s contentions that the delay in adjustment of his compensation benefits award was due to sole administrative error by VA. 38 U.S.C. § 5112(b)(10); 38 C.F.R. § 3.500(b)(2). The record supports his assertions that he had no knowledge of, nor should have been aware, of the erroneous award and that neither his actions nor failure to act contributed to the erroneous award. Rather, he submitted notification of his divorce in a timely manner and none of the subsequent VA notification letters advised him that his compensation benefits continued to include additional compensation for a spouse. It is reasonable that he believed VA was aware that he did not have a spouse since December 1999 and was paying him accordingly. Rather, VA failed to act. As the Board concludes that the creation of an overpayment debt in the amount of $5,211.81 was due to sole administrative error, the debt was not properly created. The appeal is granted. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Odya-Weis, Counsel