Citation Nr: 18148893 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 18-46 191 DATE: November 8, 2018 ISSUE Whether the creation of the $1,954.81 debt created by the Veteran’s change in dependency status is valid. ORDER The creation of the debt of $1,954.81 was proper. FINDING OF FACT 1. The Veteran’s divorce from his first spouse became final on September [redacted], 2003; at that time, he was receiving VA compensation benefits at the rate of a married veteran with two dependents (his spouse and his daughter). 2. The Veteran married his second wife on June [redacted], 2014. 3. VA received notification on March 8, 2017, of the Veteran’s June 2014 remarriage. 4. From October 1, 2003, through March 31, 2017, the Veteran was paid $1,954.81 in additional disability compensation benefits for a dependent spouse, to which he was not entitled. CONCLUSION OF LAW The RO's decision to adjust the veteran's disability compensation award effective October 1, 2003, through March 31, 2017, was proper. The debt of VA disability compensation benefits in the amount of $1,954.81 is valid. 38 U.S.C. §§ 1115, 1135, 5112 (West 2014); 38 C.F.R. §§ 3.1, 3.401 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1976 to July 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 decision of the Department of Veterans Affairs (VA) Debt Management Center in St. Paul, Minnesota. Jurisdiction was subsequently transferred to the Regional Office (RO) in Wichita, Kansas. The issues of entitlement to increased evaluations for a lower back disability and bilateral hearing loss; service connection for the right knee; and whether new and material evidence has been received to reopen a claim for plantar fasciitis/bilateral ligament have been raised by the record in a claim received in July 2018, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). Before assessing the merits of the appeal, VA’s duties under the Veterans Claims Assistance Act (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. Because the facts in this case are not in dispute and the law is dispositive in this appeal, the Board concludes that the VCAA is inapplicable. See generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Mason v. Principi, 16 Vet. App. 129 (2002). The Veteran challenges the validity of a debt that has been charged to him for overpayment of compensation due to a failure to timely notify VA of his divorce and subsequent remarriage. 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. § 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. § 5111(a). The essential facts are not in dispute and have been acknowledged by the Veteran. Effective September [redacted], 2003, the Veteran divorced his first spouse. At that time, he was receiving VA compensation for a 30 percent disability rating paid at the rate of a married veteran with two dependents (his spouse and his daughter). On June [redacted], 2014, the Veteran married his second spouse. Notice of the Veteran’s September 2003 divorce and subsequent June 2014 marriage were not provided to VA until a declaration of status of dependents form was received by VA on March 8, 2017. As noted above, the law and VA regulations are quite specific in this regard. The veteran's divorce from his first wife became final on September [redacted], 2003; therefore the RO correctly discontinued his allowance for a dependent spouse effective October 1, 2003. 38 U.S.C. § 5112(b)(2); 38 C.F.R. §§ 3.500(b), 3.501(d)(2). He failed to provide VA with notice of his divorce from his first wife and subsequent marriage to his second wife until March 8, 2017. Consequently, the RO correctly reinstated his benefits for a dependent spouse effective April 1, 2017, the first of the month following the date of receipt of information confirming his divorce from his first wife and marriage to his second wife. 38 U.S.C. § 5111(a); 38 C.F.R. § 3.401(b)(1). Based on the Veteran’s September 2003 divorce, his compensation was changed and an overpayment of $1,954.81 was created. An overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. See 38 U.S.C. § 5302; 38 C.F.R. § 1.962. An overpayment may arise from virtually any benefits program administered pursuant to VA law. 38 C.F.R. § 1.956 (a). Whenever VA finds that an overpayment of benefits has been made to a payee, the amount of such overpayment shall constitute a liability of such payee to the United States and may be recovered in the same manner as any debt. 38 U.S.C. § 3685 (a), (c); 38 C.F.R. § 21.7644. The issue of the validity of a debt is a threshold determination that must be made prior to a decision on a request for waiver of the indebtedness. Schaper v. Derwinski, 1 Vet. App. 430 (1991). In order for the Board to determine that the overpayment was not properly created, such that the debt was not valid, it must be established that the veteran was legally entitled to the benefits in question or, if the veteran was not legally entitled, then it must be shown that VA was solely responsible for the veteran 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 veteran neither had knowledge of nor should have been aware of the erroneous award. Further, neither the veteran’s actions nor his 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 was unaware that the payments are erroneous. In the present case, the facts do not support, and the Veteran does not allege, any sort of administrative error on the part of VA. The Veteran acknowledges that he did not provide VA with notification of the September 2003 divorce and June 2014 marriage until March 2017. However, the Veteran did state that he alerted Defense Enrollment Eligibility Reporting System (DEERS). The Board finds that whether or not he promptly notified DEERS is unknown. Investigation in that regard is unnecessary to this determination. Even assuming the divorce of his first wife and the addition of his second wife were promptly registered in DEERS, doing so did not constitute notice to VA. VA’s systems are not linked. The Veteran also does not allege he was misled or otherwise misinformed regarding his obligation to notify VA, separate from DEERS, of any dependency changes. While the Board is sympathetic to the Veteran’s claim, the Board must deny the claim. VA regulations state that the effective date of additional compensation based on dependency status will be the date of marriage, if evidence of the event is received within one year; otherwise, it will be date of notice of the event or of the dependent’s existence. See 38 C.F.R. § 3.401. In this case, there is no evidence that the Veteran notified VA of his second wife’s dependency prior to March 2017. Although they were indeed legally married, the regulations concerning effective dates hinge upon the date of notification, unless the claim was received within one year of the marriage. In other words, there is a one-year grace period to notify VA of the change. After that period, the effective date is the date of notification. Simply stated, the Board lacks the legal authority to award an earlier effective date for the payment of the Veteran’s compensation benefits at the higher rate, or otherwise waive the legal requirement that he notify VA in a timely fashion of any dependency changes. (Continued on the next page)   Based on the forgoing, the Board finds that the overpayment was not the result of sole administrative error because the Veteran bore the responsibility to notify VA of any dependency changes. For the foregoing reasons, the Board finds that the creation of the overpayment in the amount of $1,954.81 was proper, and the Veteran’s appeal must be denied. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.M.K., Counsel