Citation Nr: 18157170 Decision Date: 12/12/18 Archive Date: 12/11/18 DOCKET NO. 15-43 027 DATE: December 12, 2018 ORDER The retroactive termination of the Veteran’s additional disability compensation benefits for a dependent spouse, J., effective May 1, 2011 was proper; the addition of I. as a dependent spouse effective April 1, 2014, was proper; the appeal is denied. FINDINGS OF FACT 1. The Veteran was awarded additional benefits for his spouse, J., and was informed that he should notify the Department of Veterans Affairs (VA) of any change in the status of his dependents. 2. In April 2011, the Veteran and J. divorced; the Veteran subsequently married I. in October 2011. 3. The Veteran initially notified a VA Regional Office (RO) of his marital status changes in March 2014. 4. The RO removed J. from the Veteran’s award of VA disability compensation benefits effective May 1, 2011 and added L. to the award effective April 1, 2014. CONCLUSION OF LAW The retroactive termination of J. as a dependent spouse effective May 1, 2011, and the addition of I. as a dependent spouse effective April 1, 2014 were proper. 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. The Veteran was initially awarded additional VA benefits for his dependent spouse J., and was told to notify VA of dependency changes. He was furnished a VA Form 21-8764 which stated that additional benefits were included for his spouse and that failure to notify the RO in a prompt fashion of a dependency change would result in an overpayment. In April 2011, the Veteran and J. divorced. Later that year, in October 2011, the Veteran married I. However, the Veteran did not notify VA of his divorce from J. and subsequent marriage to I. until March 2014. The RO then removed J. from the Veteran’s award of VA disability compensation benefits effective May 1, 2011, the first day of the month following their divorce. The RO also added I. to the Veteran’s award effective April 1, 2014, the first day of the month following the Veteran’s report of their marriage. In this case, the Veteran continued to be improperly paid for J. when she was no longer his spouse, and before VA had knowledge of his divorce from J. and subsequent marriage to I. Thus, the RO’s actions were proper in retroactively adjusting the Veteran’s VA compensation resulting in an overpayment of benefits. There was a period of time between the Veteran’s divorce from J. and remarriage to I. when the Veteran continued to receive benefits for a spouse when he did not have a spouse. The Veteran indicated that he notified the Department of Defense (DOD) of his marital changes. The Informal Hearing Presentation cited to whether there was sole administrative error in the payment of the additional benefits for a spouse. 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 apparently notified DOD of his marital changes, but there was no notification provided to VA. He had been informed that it was his responsibility to notify VA of his marital changes. Thus, his action/inaction contributed to the erroneous award of additional benefits for a spouse being paid to him. Also, when the Veteran was unmarried, he should have been aware that he was erroneously receiving benefits for a spouse because there was no decrease in his benefits when he was no longer married and the retention of those benefits contributed to the erroneous award. Thus, there was no sole administrative error. In sum, for the period of time between the Veteran’s divorce from J. and his marriage to I. he was not married and was not entitled to any benefits for a spouse. The RO terminated the Veteran’s additional benefits for a spouse for that period. This action was proper. The law is clear that the Veteran’s right to receive additional disability compensation with respect to J. ceased after their divorce. The RO did not resume additional benefits for a spouse until the Veteran had remarried. This action was also proper. The Veteran was also not entitled to additional benefits for I. as a dependent spouse until he notified VA of his marriage to her. Based on the foregoing, the Board finds that the overpayment of additional VA compensation benefits for dependency in this case was properly created and therefore, the appeal must be denied. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Connolly, Counsel