Citation Nr: 19118167 Decision Date: 03/14/19 Archive Date: 03/13/19 DOCKET NO. 17-18 042 DATE: March 14, 2019 ORDER Entitlement to additional compensation for the Veteran’s dependent spouse for the period from December [Redacted], 2012 to May 4, 2015 is denied. FINDING OF FACTS 1. The Veteran divorced his spouse on February [Redacted], 2012, and timely informed VA of this event later the same month. 2. The Veteran remarried his spouse on December [Redacted], 2012, and he did not inform VA of the event until June 2015. 3. A May 2015 rating decision awarded an increased evaluation for service-connected depressive disorder, effective May 4, 2015. The notice letter accompanying that decision effectuated the reduction of benefits resulting from a removal of the dependent spouse from the Veteran’s account. 4. During the period of overpayment from February [Redacted], 2015 to May 4, 2015, the Veteran had at least constructive knowledge of the excess payments and made no effort to return them. This constituted an act of omission on his part. CONCLUSION OF LAW The criteria for entitlement to additional compensation for the Veteran’s dependent spouse for the period from December 2012 to May 2015 have not been met. 38 U.S.C. §§ 1114, 1115, 5110, 5112, 5302; 38 C.F.R. §§ 1.962, 3.401, 3.500, 3.660. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from March 1997 to December 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Whether the Veteran was entitled to additional compensation for his dependent spouse for the period from December [Redacted], 2012 to May 4, 2015 The Veteran seeks entitlement to additional compensation for his dependent spouse for the period from December [Redacted], 2012 to May 4, 2015. For the reasons that follow, the Board finds that additional compensation for his dependent during this period is not warranted and the creation of the overpayment was valid. 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; 38 C.F.R. § 1.962. Overpayments created by retroactive discontinuance of benefits will be subject to recovery if not waived. 38 C.F.R. § 3.660(a)(3). Where the overpayment occurred by reason of an erroneous award based solely on administrative error, the reduction of that award cannot be made retroactive to form an overpayment of debt owed to VA. 38 U.S.C. § 5112(b)(10); 38 C.F.R. § 3.500(b)(2); Erickson v. West, 13 Vet. App. 495, 499 (2000). Administrative errors include all administrative decisions of entitlement, whether based upon mistake of fact, misunderstanding of controlling regulations or instructions, or misapplication of law. VAOPGPREC 2-90 (Mar. 20, 1990). An error resulting in overpayment will not be classified as VA administrative error if it is based on an act of commission or omission by the beneficiary, or with the beneficiary’s knowledge. Id.; Jordan v. Brown, 10 Vet. App. 171 (1997) (sole administrative error is not present if the payee knew, or should have known, that the payments were erroneous); see Dent v. McDonald, 27 Vet. App. 362, 380 (2015) (knowledge can be actual or constructive). The effective date for additional compensation or pension for a dependent spouse will be the later of (1) the date of the claim, (2) the date dependency arises, (3) the effective date of the qualifying disability rating provided evidence of dependency is received within one year of notification of such rating action, or (4) the date of commencement of veteran’s award. 38 C.F.R. § 3.401(b)(1)-(4); see 38 U.S.C. § 5110(f). For the purpose of this regulation, the “date of the claim” means, as listed in order of applicability, either (i) the date of the veteran’s marriage if evidence of the event is provided within one year of the event or (ii) the date notice is received of the dependent’s existence, if evidence is received within one year of the VA request. 38 C.F.R. § 3.401(b)(1). Preliminarily, the Board notes that an appellant has two forms of recourse when faced with an overpayment. He or she may challenge the validity of the debt and/or request a waiver of indebtedness. 38 C.F.R. § 1.911(c). These are considered distinct issues but may be exercised separately or simultaneously. Id. In this case, the Veteran did not request a waiver of indebtedness; therefore, that issue will not be discussed. The facts of the case are as follows. The Veteran was in receipt of VA disability compensation and entitled to additional compensation for a dependent spouse because his combined evaluation was at least 30 percent. 38 U.S.C. §§ 1114 (c), 1115. A number of notice letters informed him of the fact that he received additional compensation for his dependent spouse, and that he was to immediately report a change in dependent status, e.g., divorce, because it would affect his benefits. See, e.g., October 2011 notice letter. On February [Redacted], 2012, he divorced his spouse. He called VA and reported this event later the same month. On December [Redacted], 2012, he remarried his ex-spouse; however, he did not report this event to VA. In a May 2015 rating decision, the RO awarded an increased evaluation for his service-connected depressive disorder. In the notice letter accompanying that decision, the RO explained that it was also effectuating the removal of his dependent spouse from his compensation benefits due to their divorce and that this action would create an overpayment. A first demand letter issued by the Debt Management Center (DMC) informed him the amount of the overpayment was $6,163.74. In June 2015, the Veteran filed a VA Form 21-686c, Declaration of Status of Dependents, which indicated that he had divorced and then remarried his ex-spouse on the dates outlined above. Accordingly, the RO added his spouse back onto his benefits as a dependent effective May 4, 2015, the effective date of the increased evaluation for his depressive disorder. The Veteran contends that he timely called and informed VA of his remarriage to his spouse around December 2012. “[T]here is a presumption of regularity under which it is presumed that government officials ‘have properly discharged their official duties.’” Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 71 L. Ed. 131, 47 S. Ct. 1 (1926)). The claims file contains multiple records of conversations the Veteran had with the RO, to include reporting his initial divorce. It does not contain this alleged conversation, and the presumption of regularity provides that had it occurred, it would have been recorded by a VA employee in the regular course of business, as required. The Veteran’s own statement that it did occur but was not recorded does not amount to clear evidence to the contrary sufficient to rebut the presumption. See Mason (Sangernetta) v. Brown, 8 Vet. App. 44, 55 (1995) (applying the presumption of regularity to receipt of a notice letter). Thus, the Board concludes that the Veteran did not provide notice of his remarriage to VA around the time it occurred. Notice of remarriage was not provided to VA until June 2015, well over one year after the occurrence of the event. The RO set the effective date of additional compensation for the dependent spouse as May 4, 2015, the effective date of the increased evaluation for depressive disorder, established in a rating decision issued the same month. This was based on the effective date of the qualifying disability rating and application of 38 C.F.R. § 3.401(b)(3). There is no basis for an earlier effective date under the law because that date is the latest of the dates outlined in 38 C.F.R. § 3.401(b)(1)-(4). Thus, while the Board is sympathetic to the Veteran’s circumstances – having divorced and then remarried approximately eight months later – the law does not allow for him to receive additional compensation after remarriage to his spouse for the period between December [Redacted], 2012 and May 4, 2015. It follows that the Veteran was not entitled to additional compensation for a dependent spouse for the period from February [Redacted], 2012 to May 4, 2015, and because he received such compensation during that period there was an overpayment. The facts show that the Veteran was aware that a change in dependent status would affect his compensation and he did timely report the change to VA. The Board acknowledges VA fault in failing to effectuate the change in dependent status and compensation benefits until approximately three years later; however, the Veteran’s continued acceptance of these excess monies during this period, without attempting to return them and with at least constructive knowledge that he was not entitled to them, constitute an act of omission on his part. VAOPGPREC 2-90; Dent, 27 Vet. App. at 380. Thus, there was shared fault in the creation of the debt, and sole administrative error is not found. (Continued on the next page)   In sum, the Veteran was overpaid compensation benefits for a dependent spouse for the period from February [Redacted], 2012 to May 4, 2015, and there is no basis for reinstating the award of additional compensation following remarriage until May 4, 2015. Moreover, the Veteran shared in fault in the creation of this overpayment due to his act of omission. Accordingly, the creation of the $6,163.74 debt was valid. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel