Citation Nr: 18154236 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-00 468 DATE: November 29, 2018 ORDER An overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $393.68 was not properly created; the appeal is granted. FINDINGS OF FACT 1. In a November 2010 letter, the Regional Office (RO) informed the Veteran that he was in receipt of additional compensation benefits for a spouse and advised him to promptly inform VA of any change in the status of his dependents. 2. VA received notice of the Veteran’s September 2013 divorce in October 2013. 3. VA did not send the Veteran any correspondence prior to March 2014 relating to his monthly compensation benefit or indicating whether the Veteran continued to receive any additional compensation benefits for a spouse. 4. The RO retroactively adjusted the Veteran’s award of VA disability compensation benefits in March 2014 to remove a dependent spouse, effective October 2013; this action resulted in the creation of an overpayment. 5. The creation of the overpayment of compensation benefits in the amount of $393.68 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 $393.68 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 February 1969 to February 1973, with confirmed service in the Republic of Vietnam. He was awarded a Purple Heart Medal, among other awards and decorations. 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 October 2013 to March 2014. 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. Historically, the Veteran was notified in a November 2010 letter that he was in receipt of increased compensation for dependents, to include his spouse, and directed him 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). A VA Form 21-686c, Declaration of Status of Dependence was received on October 8, 2013, that notified VA of the Veteran’s divorce in September 2013 and submitted a judgment of dissolution of marriage. The record does not indicate that the Veteran was since informed of whether his rate of payment included benefits for a spouse and no correspondence was sent to the Veteran until his March 2014 notification of retroactive adjustment of his compensation benefits award. Based on the above, the Board of Veterans’ Appeals (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 neither his actions nor failure to act contributed to the erroneous award. The record is also devoid of any further notifications of his rate of payment or that he was being paid for a spouse. It is reasonable that he thought VA was aware of his current dependency status and was paying him accordingly. As such, the Board finds that the Veteran neither had knowledge of nor should have been aware of the erroneous award of benefits for his spouse after their divorce and the error in the spouse not being removed was not due to the Veteran’s actions or failure to act. Rather, VA failed to act. As the Board concludes that the creation of an overpayment debt in the amount of $393.68 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