Citation Nr: 18155497 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-26 630 DATE: December 4, 2018 ORDER The decision to reduce the Veteran’s compensation benefits retroactively, effective November 1, 2006, and create an overpayment due to the termination of her marriage to E.M. was proper. FINDINGS OF FACT 1. The Veteran’s marriage to E.M. ended in October 2006 and VA was not advised of this, or of her current marriage to R.H. from August 2007 to the present, until December 2013. 2. During the period from November 2006 to December 2013, the Veteran received additional disability compensation benefits based on a spousal dependent to whom she was no longer married, which resulted in an overpayment. CONCLUSIONS OF LAW 1. The reduction of compensation benefits based on a change in marital status effective November 2006 was proper. 38 U.S.C. §§ 5101, 5110, 5112 (2012); 38 C.F.R. §§ 3.401, 3.501(d)(2) (2017). 2. The creation of the overpayment based on a change in marital status was proper. 38 U.S.C. § 5302 (2012); 38 C.F.R. § 1.962 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 2001 to February 2005. Whether the decision to reduce the Veteran’s compensation benefits retroactively, effective November 1, 2006, and create an overpayment due to the termination of her marriage to E.M. was proper. A veteran who receives disability compensation at a rate of 30 percent or higher is entitled to an additional amount per month for each dependent, to include a spouse and children. 38 U.S.C. § 1115 (2012); 38 C.F.R. § 3.4(b)(2) (2017). In connection with compensation, veterans are required to notify VA when the status of their dependents change, for example, when they get married or divorced, or when their dependent children graduate from school. 38 C.F.R. § 3.401(b) (2017). On a rotating basis, VA sends to veterans receiving compensation for dependents forms to be completed and returned with the information regarding the status of the dependents for whom additional compensation is received. The accompanying letter informs veterans that failure to return the completed form within 60 days will result in the reduction or termination of benefits. Under 38 C.F.R. § 3.401(b), the effective dates for entitlement to additional compensation for dependents are set based (1) on the date of claim and the date of the veteran’s marriage or the date notice is received of the dependent’s existence, if such evidence is received within one year of the VA request; (2) on the date dependency arose; (3) on the date of the qualifying disability rating provided evidence of dependency is received within one year of notification of the rating action; or, (4) on the date of commencement of the veteran’s award. The effective date of a reduction of pension or compensation by reason of marriage, annulment or divorce on or after October 1, 1982, or death of a dependent of a payee, shall be the last day of the month in which such marriage, annulment, divorce or death occurs. 38 U.S.C. § 5112(b)(2) (2012); 38 C.F.R. § 3.501(d)(2) (2017). For VA purposes, 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 (2012); 38 C.F.R. § 1.962 (2017). An overpayment may arise from virtually any benefits program administered pursuant to VA law, including pension, compensation, dependency and indemnity compensation (DIC), educational assistance benefits and subsistence allowance, insurance benefits, burial and plot allowances, clothing allowance, and automobile or other conveyance and adaptive equipment allowances. 38 C.F.R. § 1.956(a) (2017). In September 2013, VA sent the Veteran a VA Form 21-0538, Status of Dependents Questionnaire, and requested current information regarding the Veteran’s dependents. This letter was returned to VA by the U.S. Postal Service as undeliverable. After an updated address was obtained, the letter and form were resent to the Veteran. In December 2013, the Veteran submitted a completed VA Form 21-0538, Status of Dependents Questionnaire. Based on the information the Veteran provided therein, her former spouse, E.M., was removed from her award effective November 1, 2006, the first day of the month following their reported date of divorce, and the Veteran’s compensation payment was adjusted in accordance with the information provided. Additionally, as the Veteran continued to receive the additional compensation paid based on her marriage to E.M. until December 2013, even though the marriage ended in October 2006, receipt of these funds resulted in an overpayment of VA compensation benefits. The Veteran has essentially contested the reduction of her benefits and the resulting overpayment. Specifically, within her February 2014 Notice of Disagreement (NOD), the Veteran stated that she disagreed with the VA decision to reduce her compensation because she had filled out the dependency information form for the sole purpose of having her name changed. She also stated that she had filled out all paperwork that was requested of her each time she went to the VA, but she was not made aware that VA was divided into separate entities. Similarly, in the November 2015 VA Form 9, Appeal to the Board, the Veteran reported that she always kept her dependents up to date at the VA Medical Center, but did not know that VA medical did not communicate with the VA Regional Office. Significantly, the Board notes that, as early as September 2005, the Veteran was clearly informed by a VA notification letter that she received an additional amount of VA compensation benefits for her spouse; she was also advised of the need to notify VA immediately regarding any change in her marital status. Although the Veteran asserts that she had reported dependency information to a VA Medical Center, the evidence of record does not document any such reports; moreover, the Board cannot equate this with properly reporting a change in the status of dependents via VA Form 21-0538, Status of Dependents Questionnaire. In sum, the evidence is clear that from November 2006 to December 2013, the Veteran continued to receive VA compensation benefits for a dependent spouse, E.M., who was, in fact, no longer her legal spouse. As such, the Board finds that the retroactive reduction of the Veteran’s benefits, effective November 1, 2006, and the resulting overpayment, were properly enacted when the change in the Veteran’s marital status was first properly reported to VA in December 2013. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel