Citation Nr: 19170367 Decision Date: 09/12/19 Archive Date: 09/11/19 DOCKET NO. 19-19 224 DATE: September 12, 2019 ORDER The overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $5,808.74 was properly created; the appeal is denied. FINDINGS OF FACT 1. In a September 2001 letter, the RO informed the Veteran that he had been awarded additional benefits for his spouse, S.S., and he was informed that he should promptly inform that office of VA of any change in the status of his dependent; he was provided a VA Form 21-8764 which reiterated that additional benefits were included for his spouse and that a change in marital status (including death) would affect his right to payments. 2. In July 2011, the Veteran’s spouse, S.S., unfortunately passed away. 4. The Veteran initially notified the RO that his marital status had changed in March 2018. 5. The RO removed S.S. from the Veteran’s award of VA disability compensation benefits effective August 2011, which resulted in the creation of an overpayment. CONCLUSION OF LAW The overpayment of VA compensation benefits in the amount of $5,808.74 was properly created. 38 U.S.C. §§ 5110, 5112 (2012); 38 C.F.R. §§ 3.401, 3.501 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty from February 1958 to May 1978. The Board of Veterans’ Appeals (Board) is grateful for this Veteran’s long and distinguished service to this nation and extends its condolences on the loss of his wife. This matter is before the Board on appeal from an April 2018 administrative decision of the VA Regional Office (RO). 1. Overpayment of $5,808.74. 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. In September 2001, a VA Form 21-686c, Declaration of Status of Dependents, was received from the Veteran in which he reported that he had been married to S.S. for many years. In a January 2002 VA letter, the RO informed the Veteran that he had been awarded additional benefits for his spouse (S.S.) and he was informed that he should promptly inform that office of VA of any change in the status of his dependent. He was provided a VA Form 21-8764, which reiterated that he should promptly notify the RO because a change in marital status would affect his rights to payments. The Veteran was provided letters with the same or similar statements in December 2007, January 2009, and January 2015, the last of which occurred approximately three and half years after S.S.’s July 2011 death and approximately three years before the Veteran’s first notification in March 2018. In a March 2018 letter, the Veteran was advised that the RO retroactively removed S.S. as the Veteran’s spouse from his award of VA compensation benefits effective August 2011, the first day of the month following her passing. See 38 U.S.C. § 5112. The retroactive adjustments to the Veteran’s VA compensation benefits resulted in an overpayment debt of $5,808.74 which was the amount the Veteran was paid additional VA benefits for a spouse when she had already passed away. In sum, the RO informed the Veteran that he should promptly inform the RO of any change in the status of his dependents, including death. He was provided multiple VA Forms 21-8764, which reiterated that additional benefits were included for his spouse and that failure to notify the RO in a prompt fashion of a dependency change would affect his right to payments. The Veteran did not notify VA of any dependency changes until March 2018. The Veteran asserts that he sent a notice to VA when his wife passed away, see April 2018 Notice of Disagreement, so the creation of the overpayment is due to the inaction on VA’s part. There is no documentary evidence in the record of any notification of a change in dependency status prior to March 2018. The Board notes that there is a presumption of regularity that applies to official acts, and “in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)); see also Thompson v. Brown, 8 Vet. App. 169, 177-178 (1995) (applying the presumption of regularity to notice of a Board decision). Therefore, the presumption of regularity applies, and the Board can only conclude that the RO did not receive any information regarding changes in the Veteran’s marital status prior to March 2018. Even if the Board were to accept that the Veteran informed VA promptly, 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 continued to be paid at the same rate after he reports he informed VA and even continued to receive notices that he was being paid for one dependent; in other words, there was no reduction in his benefits after he says that he reported his wife passed away. Thus, the Veteran should have been aware that he was erroneously receiving benefits for a spouse because there was no decrease in his benefits and the retention of those benefits contributed to the erroneous award. The Board acknowledges the representative’s legal argument that remand is required because the Veteran received a notification that the amount was already paid in full in response to the Veteran’s payment of $3,308.74. The Board is not so persuaded. The Board notes that the representative states that the VA wrote the Veteran stating that the overpayment was paid in full and reflected a debt in the amount of $3,308.74; however, the notification letter actually reflects a payment of $3,308.74. This indicates that the representative fundamentally misunderstands the meaning of this letter. Additionally, the issue is not whether the Veteran already paid off this debt, it is whether the Veteran’s $5,808.74 debt was valid in the first place, regardless of the repayment status or how much any individual payment was. Indeed, even if the Board were to assume that VA accepted a single payment of $3,308.74 as satisfaction for the total debt, the Board has no authority to review compromises between the Veteran and VA. See 38 C.F.R. § 1.930; VA Gen. Coun. Prec. 4-2003 (Aug. 28, 2003). [CONTINUED ON THE NEXT PAGE]   In sum, for the period between the S.S.’s date of death and the April 2018 removal of S.S. from the award, he did not have a dependent 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 S.S. ceased after she passed away. Thus, the Board finds that the overpayment in this case was properly created. To the extent that the Veteran feels this is unfair, that argument pertains to a claim for a waiver of the recovery of the debt, which is not currently before the Board. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lambert, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.