Citation Nr: 1808089 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-27 094 ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office in Seattle, Washington THE ISSUES 1. Whether a debt related to the payment of $4,582 in dependency compensation is valid. 2. Entitlement to a waiver of recovery of the overpayment of $4,582 in dependency compensation. (The issues of entitlement to an increased rating for bilateral hearing loss, service connection for a right hip disorder, and the propriety of the combined service connected disability rating of 50 percent will be addressed in a separate decision) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to August 1973 and March 1974 to October 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 determination by the VA Debt Management Center in St. Paul, Minnesota. In May 2017, the Veteran was afforded a videoconference hearing pursuant to the provisions of 38 U.S.C. § 7107(e) (2012). During this hearing, the undersigned Veterans Law Judge was located in Washington, D.C., and the Veteran was located at the RO. A transcript of this hearing is of record. The matter of entitlement to a waiver of recovery of the overpayment of $4,582 in dependency compensation addressed in the REMAND portion of the decision below requires additional processing and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Communications from VA to the Veteran, to include one dated February 24, 2003, notified the Veteran that his service connected benefits included an additional amount for his spouse S., and that he was to notify the VA immediately if there was any change in his marital status. 2. The Veteran divorced S. effective from March 28, 2008, but S. remained on his compensation award as a dependent until the Veteran notified VA of this divorce in March 2012. 3. The Veteran received $4,582 in dependency compensation for S. from April 2008 to March 2012, even though he was not married to S. during this period. CONCLUSION OF LAW The payment of $4,582 in dependency compensation is a valid debt. 38 U.S.C. §§ 1115, 5302 (2012); 38 C.F.R. §§ 1.962, 3.4 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's notification and assistance duties are not applicable given the nature of the issue adjudicated below. See, e.g., Reyes v. Nicholson, 21 Vet. App. 370 (2007) (holding that provisions of 38 U.S.C. § 5103(a) do not apply to claims for relief under Chapter 53 of Title 38 of the United States Code, pertaining to waiver of recovery of overpayments, which includes validity of the debt); see also Schaper v. Derwinski, 1 Vet. App. 430 (1991) (challenging validity of debt). The preliminary issue of the validity of a debt is a threshold determination that must be made in a benefits overpayment debt collection matter. Schaper, supra. 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. Here, the record reflects the Veteran divorced his former spouse S. effective from March 28, 2008, but she remained on his compensation award as a dependent until the Veteran notified VA of this divorce in March 2012. Communications from VA to the Veteran, to include one dated in February 24, 2003, notified the Veteran that his service connected benefits included an additional amount for his spouse S., and that he was to notify the VA immediately if there was any change in his marital status. The record established that the Veteran received $4,582 in dependency compensation for S. from April 2008 to March 2012, even though he was not married to S. during this period. See May 2013 determination by the VA Debt Management Center in St. Paul, Minnesota. There is no evidence VA was notified by any communication or correspondence from the Veteran regarding his divorce from S. until March 2012, and the presumption of regularity of VA in processing the Veteran's award of VA benefits applies. See United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926) (indicating it is presumed that government officials "have properly discharged their official duties"). Thus, it is presumed that VA has properly discharged its official duties in handling correspondences from the Veteran. The presumption of regularity is not absolute; it may be rebutted by the submission of "clear evidence to the contrary." Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). However, statements made by the claimant are not the type of clear evidence to the contrary which would be sufficient to rebut the presumption of regularity. Jones v. West, 12 Vet. App. 98, 102 (1999), Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). Further, the benefit of the doubt is not applicable to rebut the presumption of regularity. Schoolman v. West, 12 Vet. App. 307, 311 (1999). In essence, the Veteran questions the validity of the debt in question because he feels the VA took an "extraordinarily long time to review my information," and that he supplied the required information as to his divorce in a "timely manner (see June 2014 substantive appeal). In point of fact, the Veteran's representative indicated that the Veteran does not dispute the validity of the debt in question, but instead requests wavier of recovery of this debt due to the financial hardship he would incur, a matter which will be addressed in the Remand below (see June 2015 statement in lieu of VA Form 646). Notwithstanding this fact and as indicated above, as the Veteran's statements are insufficient to overcome the presumption of regularity, there must be some other form of evidence that clearly shows VA has not properly discharged its duty to handle communications related to his dependency status. Here, there is no evidence of record that indicates VA employees failed to properly discharge their official duties in receiving communications from the Veteran regarding his dependency status, other than his assertions as to "tardiness" by the VA. Given the above, the undersigned must find that presumption of regularity with respect to the creation of the debt in question has not been rebutted because there is no clear evidence to the contrary. See Ashley, 2 Vet. App. at 309. As it is presumed VA properly discharged its duties with respect to handling communications regarding the Veteran's dependency status, the Veteran must be deemed to be at fault for the payment of dependency compensation for S. from April 2008 to March 2012. As such, the payment of $4,582 in dependency compensation is a valid debt, and the Veteran's appeal is this regard must be denied. ORDER The appeal with respect to the validity of the debt related to the payment of $4,582 in dependency compensation is denied. REMAND The record reflects a June 2014 decision by the Committee on Waivers and Compromises of the VA Regional Office in St. Paul, Minnesota (Committee) that denied waiver of recovery of the debt related to the payment of $4,582 in dependency compensation discussed above. While the earliest disagreement with this decision was received after the one year appeal period following the notice of this decision by way of the June 2015 statement in lieu of VA Form 646 received from the Veteran's representative discussed above, the matter of entitlement to waiver of recovery of the debt in question was discussed at the hearing before the undersigned. As such, the undersigned will concede that a timely notice of disagreement was filed with respect to the June 2014 decision of the Committee. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Therefore, a statement of the case (SOC) addressing the matter of entitlement to waiver of recovery of the debt in question is necessary pursuant to the holding in Manlincon v. West, 12 Vet. App. 238 (1999) and to ensure due process to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Accordingly, the case is REMANDED for the following action: Furnish to the Veteran and his representative an SOC with respect to the matter of waiver of recovery of the overpayment of $4,582 in dependency compensation. The Veteran and his representative are hereby reminded that to obtain appellate review of this matter, a timely appeal must be perfected; that is, within 60 days of the issuance of the SOC. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The remanded claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs