Citation Nr: 18148902 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 16-36 457 DATE: November 9, 2018 ORDER The indebtedness created against the Veteran’s account based on an overpayment of VA disability benefits in the amount of $964.29 from September 1, 2014 to March 1, 2015 is valid. FINDING OF FACT 1. In August 2014, the Veteran divorced his spouse. In September 2014, he informed VA of this action and requested the dependent spouse be removed from his account. 2. The RO did not effectuate the change to the Veteran’s account for approximately seven months. This created an overpayment of $964.29. 3. The Veteran was aware that a change in dependent status would affect his VA compensation benefits. He should have known that continuation of payments at the same rate was erroneous and his acceptance of those payments constituted an omission. CONCLUSION OF LAW The indebtedness created against the Veteran’s account based on an overpayment of VA disability benefits in the amount of $964.29 from September 1, 2014 to March 1, 2015 is valid. 38 U.S.C. §§ 1114 (c), 1115, 5112, 5302; 38 C.F.R. §§ 1.962, 3.500, 3.660. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1966 to October 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March2015 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Whether the indebtedness created against the Veteran’s account based on an overpayment of VA disability benefits in the amount of $964.29 from September 1, 2014 to March 1, 2015 is valid. The Veteran contends that the indebtedness created against his account is invalid because he timely informed VA of the divorce from his spouse and the creation of the debt was the result of administrative delay. For the reasons that follow, the Board finds that the debt is valid. An overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. 38 U.S.C. § 5302; 38 C.F.R. § 1.962. Overpayments created by retroactive discontinuance of benefits will be subject to recovery if not waived. 38 C.F.R. § 3.660(a)(3). The relevant authority for determining the effective dates of reductions and discontinuances of pension is 38 U.S.C. § 5112 and 38 C.F.R. § 3.500. In pertinent part, the effective date of reduction or discontinuance of pension by reason of divorce shall be the last day of the month in which such divorce occurs. 38 U.S.C. § 5112(b)(2). Where the overpayment occurred by reason of an erroneous award based solely on administrative error, the reduction of that award cannot be made retroactive to form an overpayment of debt owed to VA. 38 U.S.C. § 5112(b)(10); 38 C.F.R. § 3.500(b)(2); Erickson v. West, 13 Vet. App. 495, 499 (2000). 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 (Mar. 20, 1990). An error resulting in overpayment will not be classified as VA administrative error if it is based on an act of commission or omission by the beneficiary, or with the beneficiary’s knowledge. Id.; 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); see Dent v. McDonald, 27 Vet. App. 362, 380 (2015) (knowledge can be actual or constructive). The facts of this case are not in dispute. The Veteran was in receipt of VA disability benefits, to include additional compensation for a dependent spouse. 38 U.S.C. §§ 1114(c), 1115 (providing additional compensation for dependents of veterans who are at least 30 percent disabled). In August 2014, he divorced his spouse. In September 2014, he informed VA of this action, providing a copy of the divorce decree and requesting that the dependent be removed from his account. VA did not process this request until March 2015, and the result of this approximate seven-month delay was an overpayment of $964.29. Based on a review of all evidence of record, the Board finds that the $964.29 debt is valid. Preliminarily, the Board notes the Veteran has not challenged the amount/calculation of the debt; thus, the Board will not review that matter. The Veteran had knowledge that the presence of his dependent spouse on his account provided for additional compensation, and that a change in her dependent status would affect his level of VA disability compensation moving forward. He was informed of this fact by multiple notices. See, e.g., September 2010 notice letter. His prompt request to have the dependent removed from his account following the divorce further evidenced his understanding of this fact. Moreover, the Board notes that the Veteran has not asserted that he did not have knowledge or understanding of the effects of a change in dependent status. His entire argument rests on moral principle that may be summarized as follows: He did his part to timely inform VA and the debt was unjustly created by VA’s delayed action. The Board does not agree. As indicated above, the Veteran had knowledge that the removal of a dependent from his account would affect his VA disability compensation. While VA did not effectuate the change for approximately seven months, a reasonable person would have entertained doubt as to the continuance of their benefits at an unchanged rate. Instead, the Veteran continued to accept his VA disability compensation checks at the unchanged rate, and his actions in this regard are considered an omission. In other words, fault does not solely lie with VA; rather, it is shared, to at least some degree, by the Veteran. (Continued on the next page)   In sum, the creation of the $964.29 debt was not the result of sole administrative error because the Veteran should have known the continuance of payments at an unchanged rate was erroneous and his acceptance of such payments constituted an omission. Accordingly, the $964.29 debt is valid. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel