Citation Nr: 18149987 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-03 847A DATE: November 14, 2018 ORDER The overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $9,166.67 was properly created; the appeal is denied. REFERRED The issue of entitlement to waiver of recovery of an overpayment of additional VA compensation benefits for a dependent spouse in the amount of $9,166.67 is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. In a February 2004 letter, the Veteran was notified that he had been awarded additional benefits for M., effective February 1, 2004. 2. The Veteran was provided VA Forms 21-8764 which stated that failure to notify the VA Regional Office (RO) in a prompt fashion of a dependency change would result in an overpayment. 3. In May 2010, the Veteran and M. divorced. 4. In May 2011, the Veteran notified VA of his divorce from M. and of his marriage to Y., but failed to furnish requested information and his claim for benefits for Y. was denied. 5. VA did not remove M. from the Veteran’s award of benefits immediately; in April 2015, the Veteran was notified that M. had been removed from his award effective June 1, 2010, the first day of the month following his divorce. 6. The action to remove M. retroactively from the Veteran’s award resulted in the creation of an overpayment in the amount of $9,166.67. CONCLUSION OF LAW The overpayment of VA compensation benefits in the amount of $9,166.67 was 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 law provides for the rates of disability compensation, and for payment of additional compensation for dependents of veterans who are at least 30 percent disabled. 38 U.S.C. §§ 1114 (c), 1115, 1134, 1135. The Veteran was, at all times relevant to this issue and the period of time in question, rated appropriately to receive additional compensation for a spouse. In addition, dated from when the Veteran was awarded VA compensation, he was provided VA Forms 21-8764 which indicated that the failure to notify the RO in a prompt fashion of a dependency change would result in an overpayment. The Veteran was initially awarded benefits for A., his spouse. However, he divorced A. in May 1995 and then subsequently married M. In a February 2004 letter, the Veteran was notified that he had been awarded additional benefits for M., effective February 1, 2004. Thereafter, in a May 2011 VA Form 21-686c, Declaration of Status of Dependents, the Veteran reported that he divorced M. in May 2010, and married Y. in April 2011. In response, in June 2011, VA sent the Veteran a letter indicating that additional evidence was needed from the Veteran. The letter stated the following: The number of previous marriages indicated on your application for benefits did not equal the former spouses listed in your record. On the enclosed VA Form 21 686c, Declaration of Status of Dependents please provide your complete marital history listing the date and place of each prior marriage and its termination for you and your spouse. Also please indicate the number of times your spouse has previously been married if any. The Veteran did not respond. In October 2011, the Veteran was notified that his claim had been denied because he did not respond to the June 2011 letter. He was told that he could still submit the requested information. He was also told that he could appeal the decision and was furnished his procedural and appellate rights. He did not submit the information and he did not appeal. In April 2015, the Veteran was informed that M. had been removed from his award effective June 1, 2010 because they divorced in May 2010. June 1, 2010, is the first day of the month following the divorce. He was also told that more information was needed to add Y. as his spouse to his award. The RO then attempted to contact the Veteran via telephone regarding information about Y. as his current spouse (as well as about a stepchild). In May 2015, the Veteran reported that he married Y. in April 2011 and they were divorced in September 2013. For the period of June 1, 2010 to May 1, 2015, VA paid the Veteran additional VA compensation for M. in the amount of $9,166.67. This amount represents the overpayment which the Veteran was notified of in May 2015. In sum, the Veteran was informed that he should promptly inform the RO of any change in the status of his dependents. He was provided VA Forms 21-8764 which stated that failure to notify the RO in a prompt fashion of a dependency change would result in an overpayment that would need to be repaid. The Veteran notified VA of the divorce from M., but when requested to furnish additional information, he did not do so as the Veteran has acknowledged. His representative also indicates that since the Veteran was married to another person and had a stepchild for part of the period that he was paid for M. as a spouse, that amount should be offset against what he owes; however, he did not provide requested information for them, as noted above, so his claim for additional benefits for them was initially denied and unappealed by the Veteran. The Board recognizes that VA was notified of the Veteran’s divorce from M. and then there was a significant period of time where no action was taken. Accordingly, the Board has considered whether there was sole administrative error in the payment of the additional benefits for a spouse due to the delay. Under 38 U.S.C. § 5112 (b)(10), the effective date of a reduction or discontinuance of compensation by reason of an erroneous award based solely on administrative error or error in judgment shall be the date of last payment. See also 38 C.F.R. § 3.500 (b)(2). “Stated another way, when an overpayment has been made by reason of an erroneous award based solely on administrative error, the reduction of that award cannot be made retroactive to form an overpayment debt owed to VA from the recipient of the erroneous award.” Erickson v. West, 13 Vet. App. 495, 499 (2000). The Board notes, however, that sole administrative error may be found to occur only in cases where the Appellant neither had knowledge of nor should have been aware of the erroneous award. Further, such error contemplates that neither the Appellant’s actions nor his failure to act contributed to the erroneous award. 38 U.S.C. § 5112 (b)(10); 38 C.F.R. § 3.500 (b)(2). In this case, the Veteran continued to be paid at the same rate after he reported his divorce from M. when he reported his change in status; in other words, there was no reduction in his benefits after he reported that he had divorced M. and was specifically denied benefits for Y. so he knew or should have known that he was not getting benefits for Y. or a stepchild as dependent. Thus, the Veteran also should have been aware that he was erroneously receiving benefits for M. because there was no decrease in his benefits when he was no longer married to her, but had been denied benefits to Y. and failed to submit requested information; the retention of those benefits for M. contributed to the erroneous award. The RO terminated the Veteran’s additional benefits for M. for the time from their divorce onward when he was paid benefits for her, as his spouse. This action was proper. The law is clear that the Veteran’s right to receive additional disability compensation with respect to M. ceased after their divorce. Thus, the Board finds that the overpayment in this case was properly created. To the extent that the Veteran feels this is unfair because there was a period of overlapping time when he was in fact married (to Y.), that argument pertains to a claim for a waiver of the recovery of the debt which is not before the Board at this time and which has been referred to the AOJ for adjudication. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Connolly, Counsel