Citation Nr: 18151357 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 17-04 894A DATE: November 16, 2018 ORDER An overpayment of VA nonservice-connected death pension in the amount of $2,634.00 having been validly created, the appeal is denied. REFERRED The appellant’s statement in the October 2016 notice of disagreement (NOD) and the January 2017 VA Form 9 may be reasonably construed as a request for waiver of recovery of an overpayment of VA nonservice-connected death pension benefits in the amount of $2,634.00. In these statements the appellant asserts that she was not at fault in the creation of the overpayment and that recovery of the overpayment causes undue financial hardship. However, the issue of entitlement of a waiver of an overpayment of VA pension benefits in the amount of $2,634.00 has not been adjudicated by the Agency of Original Jurisdiction (AOJ); therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. VA informed the appellant of her responsibility to promptly notify VA of any changes in her income or her dependents’ income, including Social Security Administration (SSA) income. 2. The appellant failed to notify VA of changes in her SSA income, which resulted in the creation of an overpayment of VA nonservice-connected death pension benefits in the amount of $2,634.00. CONCLUSION OF LAW The overpayment of VA nonservice-connected death pension benefits in the amount of $2,634.00 was validly created. 38 U.S.C. §§ 5112, 7104 (West 2014); 38 C.F.R. §§ 3.1911, 3.500 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1968 to December 1970, and died in August 2005. The appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2016 decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Philadelphia, Pennsylvania. Validity of overpayment of VA nonservice-connected death pension benefits The appellant contends that the overpayment of VA nonservice-connected death pension benefits in the amount of $2,634.00 was improperly 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. 38 C.F.R. § 1.911. An overpayment may arise from virtually any benefits program administered pursuant to VA law. In order for the Board to determine that the overpayment was not properly created, it must be established that the beneficiary was legally entitled to the benefits in question or, if there was no legal entitlement, then it must be shown that VA was solely responsible for the erroneous payment of benefits. Sole administrative error connotes that the beneficiary neither had knowledge of nor should have been aware of the erroneous award. Further, neither the beneficiary’s actions nor his or her 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). For the reasons set forth below, the Board finds that an overpayment of VA pension benefits in the amount of $2,634.00 was validly created. In November 2011, VA received from the appellant a claim for nonservice-connected death pension based on the Veteran’s service on which she reported that she received SSA income of $307 per month, and that her daughter received SSA income of $424 per month. See November 2011 VA Form 21-534. In February 2012, the appellant reported that her SSA income was increased to $401 per month, and that her daughter’s SSA income was increased to $439 per month. See February 7, 2012 VA Form 21-0820. Later the same month, the appellant reported that her SSA income was $381 per month, and her daughter’s SSA income was $439 per month. See February 16, 2012 Veteran correspondence. In June 2012, VA received information from SSA showing that the appellant’s SSA income was $401 per month, and that her daughter’s income was $439 per month. See June 20, 2012 SSA inquiry profile; see also January 16, 2013 SSA inquiry profile (showing that the appellant’s SSA income was increased to $408 per month, and her daughter’s income was increased to $446 per month, effective December 2012). In January 2013, the RO granted the appellant nonservice-connected death pension benefits. See January 2013 VA notification letter. In calculating the appellant’s pension award, the RO noted that the appellant’s countable income was $401 per month from December 1, 2011, and $408 per month from December 1, 2012, and that her daughter’s countable income was $439 per month from December 1, 2011, and $446 per month from December 1, 2012. VA notified the appellant of her responsibility to immediately notify VA of any change in her income or the income of her dependents, including SSA benefits. See id. In August 2015, VA received information that the appellant’s SSA income was increased to $558 per month from May 1, 2014, and to $567 per month, effective December 1, 2014, and that her daughter’s SSA income was increased to $453 per month, effective December 2013, and to $461 per month, effective December 1, 2014. See August 2015 SSA inquiry profile. VA notified the appellant of the discrepancy, and informed her that her VA pension benefit payment was proposed to be decreased, effective May 1, 2014, and terminated effective September 1, 2015 (her son was removed from the award because he turned 18) due to the increased SSA income amounts. VA also informed the appellant of the proposed creation of an overpayment of VA pension benefits as a result of the income discrepancy, and noted that the appellant had 60 days to submit evidence showing her correct SSA benefits since May 1, 2014. See August 31, 2015 VA notification letter. In November 2015, the appellant submitted a VA Form 21-534 on which she reported that her income was $525 per month ($379 in SSA income in addition to $146 for “widow pension”), and that her daughter’s income was $461 per month. In an April 2016 notification letter, VA informed the appellant that her pension benefits were reduced, effective May 1, 2014, and terminated, effective September 1, 2015, thus creating the overpayment on appeal. See also March 2016 Debt Management Center letter. The appellant asserts that a VA representative told her that she did not have to keep informing VA of changes in her income. See October 2017 NOD. However, there is no record of such conversation, such as a report of report of contact, or a report of general information. Then in a later statement, the appellant advanced that SSA informed her that SSA would inform VA of the changes in her SSA income. See January 2017 VA form 9. However, as noted above, in the January 2013 notification letter, VA notified the appellant of her responsibility to immediately notify VA of any change in her income or the income of her dependents, including Social Security benefits because her nonservice-connected death pension benefit was dependent on her income. Accordingly, the appellant knew or should have known that she was responsible to promptly report to VA all changes in income, including SSA income. Based on the foregoing, the Board finds that the appellant has received monetary benefits to which she was not entitled due to her failure to promptly notify VA of the changes in SSA income for her, as well as her daughter. Accordingly, the Board finds that the overpayment of VA nonservice-connected pension benefits in the amount of $2,634.00 was validly created, and the appeal must, therefore, be denied. 38 U.S.C. § 5112(b)(9), (10); 38 C.F.R. § 1.911, 3.500(b)(2) (2017); Jordan, 10 Vet. App. 171. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Ragheb, Counsel