Citation Nr: 18157894 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 15-22 770A DATE: December 13, 2018 ORDER An overpayment of apportioned VA disability benefits to the appellant in the amount of $13,500 having been validly created, the appeal is denied. REFERRED The appellant’s statements in the December 2014 notice of disagreement (NOD), the July 2015 VA Form 9, and the June 2018 VA Form 5655 may be reasonably construed as a request for waiver of recovery of an overpayment of apportioned VA disability benefits to the appellant in the amount of $13,500. In these statements the appellant asserts that recovery of the overpayment causes undue financial hardship. However, the issue of entitlement of a waiver of an overpayment of apportioned VA disability benefits to the appellant in the amount of $13,500 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. The appellant was legally married to the Veteran on November 17, 1990, and their divorce was finalized on February 8, 2011. 2. VA informed the appellant of her responsibility to promptly notify VA of any change in her marital status to the Veteran. 3. The appellant failed to promptly notify VA of her February 2011 divorce from the Veteran, which resulted in the creation of an overpayment of apportioned VA disability benefits to the appellant in the amount of $13,500. CONCLUSION OF LAW The overpayment of apportioned VA disability benefits to the appellant in the amount of $13,500 was validly created. 38 U.S.C. §§ 5112, 7104 (West 2014); 38 C.F.R. §§ 1.911, 1.962, 3.500 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1971 to December 1978, and died in November 2018. The appellant is the Veteran’s ex-spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2014 decision by the Debt Management Center of Department of Veterans Affairs (VA) Regional Office (RO) located in St. Paul, Minnesota. (The issue of whether the decision to terminate the apportionment of the Veteran’s VA disability benefits to the appellant, effective February 8, 2011, was proper will be addressed in a separate decision of the Board.) Validity of overpayment The appellant contends that the overpayment of apportioned VA disability benefits to the appellant in the amount of $13,500 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. See 38 U.S.C. § 5302; 38 C.F.R. § 1.962. 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. A claimant has the right to dispute the existence and amount of the debt. 38 C.F.R. § 1.911(c). 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 the apportionment of apportioned VA disability benefits to the appellant in the amount of $13,500 was validly created. The record reflects that the overpayment at issue was created as a result of the appellant’s divorce from the Veteran, and the appellant’s failure to promptly notify VA of the divorce. The evidence shows that the Veteran and appellant were married on November 17, 1990. See, e.g., November 1990 certificate of marriage. A November 2006 decision granted an apportionment of the Veteran’s VA benefits to the appellant in the amount of $300 per month. The appellant was informed that the payment of these apportioned benefits may be affected by divorce of the appellant and Veteran, and that she should inform VA of any such divorce. A July 2011 VA Form 211-686c shows that the Veteran reported that he and the appellant were divorced on January 10, 2011. In August 2012, VA sent a letter to the appellant informing her that VA received information that the Veteran and appellant were divorced on January 10, 2011, and that it was proposed to stop her apportionment benefits, effective February 1, 2011. In November 2014, the appellant confirmed that the date of divorce was February 8, 2011. See November 2014 Form 21-0820 (appellant). In November 2014, the appellant was informed of the creation of an overpayment of the apportionment of the Veteran’s VA benefits to the appellant in the amount of $13,500. Upon a divorce from a veteran, the ex-spouse loses status as a veteran’s spouse, including any potential entitlement to an apportionment of VA disability compensation, effective from the date of the divorce. See 38 U.S.C. § 101(31) (West 2014); 38 C.F.R. §§ 3.1(j), 3.50; Marrero v. Gober, 14 Vet. App. 80, 82 (2000). A divorce severs the dependent relationship. In this case, it is not disputed that the Veteran and appellant divorced on February 8, 2011. The February 2011 divorce severed the dependent relationship between the Veteran and the appellant. While VA apparently knew by July 2011 that the parties were divorced earlier that year, the appellant did not attempt to inform VA she was receiving payments in error. But this is essentially irrelevant with respect to the question of the validity of the debt. To the extent VA may have some fault by not acting with more alacrity to cease the apportionment payments, such is a matter for a waiver overpayment claim, which the Board explained on the title page of this decision is a separate claim that is not before the Board. Based on the foregoing, the Board finds that the overpayment of apportioned VA disability benefits to the appellant in the amount of $13,500 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