Citation Nr: 19175331 Decision Date: 09/27/19 Archive Date: 09/27/19 DOCKET NO. 18-24 623 DATE: September 27, 2019 ORDER The overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $17,831.59 was properly created; the appeal is denied. FINDINGS OF FACT 1. The Veteran and J.W. married in November 1990. 2. In June 1995, the Veteran and J.W. divorced; the Veteran was not legally entitled to additional benefits based on J.W. being a dependent spouse from that time forward. 3. The Veteran did not timely notify VA of his June 1995 divorce from J.W. 4. The overpayment in the amount of $17,831.59 was not solely the result of VA administrative error. CONCLUSION OF LAW The overpayment of VA compensation benefits in the amount of $17,831.59 was validly created. 38 U.S.C. §§ 5110, 5111, 5112; 38 C.F.R. §§ 3.401, 3.501. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1980 to May 1983 and January 1988 to July 1989. The issue of the validity of a debt is a threshold determination that must be made in a benefits overpayment debt collection matter. Schaper v. Derwinski, 1 Vet. App. 430 (1991). 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. An additional amount of compensation may be payable for a spouse, child, and/or dependent parent where a Veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling. 38 C.F.R. § 3.4(b)(2). In order for the Board to determine that an overpayment was not properly created, thereby invalidating the debt, the record must establish the Veteran was legally entitled to the benefits in question or if not legally entitled, then it must be shown that VA was solely responsible for the Veteran being erroneously paid compensation benefits. 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 (July 17, 1989), 55 Fed. Reg. 27,757 (1990). Sole administrative error connotes the Veteran neither had knowledge of nor should have been aware of the erroneous award. Further, neither the Veteran’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) (sole administrative error is not present if the payee knew, or should have known, that the payments were erroneous). An administrative error resulting in an overpayment will not be classified as a VA administrative error or error in judgment if the error is “based on an act of commission or omission by the beneficiary, or with the beneficiary’s knowledge.” Dent v. McDonald, 27 Vet. App. 362, 380 (2015) (citing 38 U.S.C. § 5112(b)(9); see 38 C.F.R. § 3.500(b)(1); VAOGCPREC 2-90 (Mar. 20, 1990)). Thus, a finding of sole administrative error requires not only error on the part of VA, but that the beneficiary is unaware that the payments are erroneous. Analysis The Veteran asserts that an overpayment of VA disability compensation in the amount of $17,831.59, based on the removal of his dependent spouse, was not properly created. On his March 1993 Application for Compensation or Pension, the Veteran stated that he married J.W. in November 1990. In October 1998, the Veteran submitted VA Form 21-686c, Declaration of Status of Dependents, and confirmed his marriage to J.W. In an October 2011 letter, VA noted that the Veteran had not provide a complete history of his spouse’s previous marriage; so, VA mailed Form 21-686c to the Veteran and requested that he complete and submit the form. The Veteran did not submit the form. In November 2014, J.W. informed VA that she and the Veteran had divorced in June 1995. In August 2016, VA mailed Form 21-686c to the Veteran and asked him to update his dependent’s information. The Veteran was afforded 60 days to submit the form; however, he failed to return the form. In December 2016, VA removed J.M. from the Veteran’s award, effective April 1, 1999. A Debt Management Center (DMC) letter assessed a debt of $17,831.59. In his December 2016 Notice of Disagreement, the Veteran stated that he had not been overpaid. He stated that the record shows that his child had been his dependent from 1984 to 2004. As proof of the status of his dependents, the Veteran resubmitted a birth certificate, his ex-wife’s death certificate, and a marriage certificate. However, based on the evidence of record, the Board finds that the creation of the debt is valid. First, the Veteran was not legally entitled to the benefits he received based on his marriage to J.W. In November 2014, J.W. stated that she and the Veteran had divorced in 1995. On two separate occasions, VA requested the Veteran complete and submit VA Form 21-686c; however, he did not return the form. The Board notes that the Veteran has not asserted that he did not receive the form which was sent to his last known address of record, and there is no indication that the letters were returned as undeliverable. Accordingly, the regularity of mail service is presumed. See Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1991). As the Veteran did not return VA Form 686c and VA did not have evidence of his updated dependent’s information, the Board finds that J.W.’s removal from the Veteran’s compensation award is appropriate, and the Veteran was not legally entitled to the benefits he received based on his marriage to J.W. The Board notes that the Veteran submitted a birth certificate, his ex-wife’s death certificate, and a marriage certificate; however, these documents did not provide the updated information VA requested. Additionally, the evidence shows that VA’s overpayment to the Veteran was not the result of sole VA administrative error. Sole administrative error entails no knowledge or fault on the part of the debtor. See Jordan, 10 Vet. App. 171. From June 1996, the Veteran began receiving notification letters stating that he was receiving additional benefits on account of his dependent spouse, and it was his responsibility to promptly report any change in the status of his dependents to VA. Therefore, the Board finds that the Veteran knew or should have known that his compensation award should have been adjusted based on a change in his marital status in 1995, and that he was aware or should have been aware that the payments he continued to receive for years following his divorce were erroneous because they were based on a finding that he was still married to J.W. Because the Veteran should have been aware that he was erroneously receiving benefits for J.M., and he failed to submit a completed VA Form 21-686c, the creation of the overpayment was not a result of sole VA administrative error. 38 U.S.C. § 5112(b)(9), (10); 38 C.F.R. § 3.500(b)(2); Jordan, supra. Accordingly, the Board finds the creation of the overpayment was valid. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The application of the law to the facts in this case is dispositive. Where there is no entitlement under the law to the benefit sought, the appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994) MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.