Citation Nr: 20002598 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 18-21 398 DATE: January 14, 2020 ORDER The overpayment of Department of Veterans Affairs (VA) additional compensation benefits for a dependent spouse in the amount of $4,510.86 was properly created; the appeal is denied. FINDINGS OF FACT 1. The Veteran has been awarded service connection for disabilities; on multiple occasions, he was provided VA Forms 21-8764 which stated that failure to notify the VA Regional Office (RO) in a prompt fashion of a dependency change would result in an overpayment. 2. In January 2014, the Veteran and K. divorced; the Veteran promptly notified the RO. 3. The action by the RO to remove K. retroactively from the Veteran’s award resulted in the creation of an overpayment in the amount of $4,510.86. CONCLUSION OF LAW The overpayment of VA compensation benefits in the amount of $4,510.86 was properly created. 38 U.S.C. §§ 5110, 5111, 5112; 38 C.F.R. §§ 3.401, 3.501. REASONS AND BASES FOR FINDING AND CONCLUSION 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 March 2002, the Veteran married E. and notified the RO. The RO added her to the Veteran’s award. He was told that if he got divorced then he should contact the RO promptly to avoid an overpayment. He was also provided a VA Form 21-8764 which indicated that the failure to notify the RO in a prompt fashion of a dependency change would result in an overpayment. The Veteran and E. divorced, he informed the RO, and the RO removed E. from his award. In November 2007, the Veteran informed the RO that he had married K., the RO added K. to the Veteran’s award as a dependent, and the Veteran was again provided a VA Form 21-8764. In January 2014, the Veteran and K. divorced. The Veteran promptly notified the RO. However, the RO delayed taking action to remove K. from the Veteran’s award. In June 2016, the Veteran was told that K. had been retroactively removed. This action resulted in the creation of an overpayment in the amount of $4,510.86. The Veteran contends that the debt is not valid because he timely notified the RO of his divorce and the RO took an extended time period to remove K. from his award. The Board notes that there needs to be sole VA error in order for the debt to be invalid. Under 38 U.S.C. § 5112 (b)(10), the effective date of a reduction or discontinuance of compensation by reason of an erroneous award based solely on administrative error or error in judgment shall be the date of last payment. See also 38 C.F.R. § 3.500 (b)(2). “Stated another way, when an overpayment has been made by reason of an erroneous award based solely on administrative error, the reduction of that award cannot be made retroactive to form an overpayment debt owed to VA from the recipient of the erroneous award.” Erickson v. West, 13 Vet. App. 495, 499 (2000). The Board notes, however, that sole administrative error may be found to occur only in cases where the Veteran neither had knowledge of nor should have been aware of the erroneous award. Further, such error contemplates that neither the Veteran’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 the divorce occurred in January 2014. As such, he should have had knowledge of the award and he contributed to it since he continued to receive and keep those payments. As such, although the RO should have stopped the additional award for K. in a timelier manner, the Veteran should have been aware of the erroneous award. Thus, there was no sole VA error. The RO removed K. from the Veteran’s award effective February 1, 2014. Under 38 U.S.C. § 5112 (b)(2), the effective date of reduction or discontinuance of compensation by reason of divorce of a dependent of a payee shall be the last day of the month in which such divorce occurs. See 38 C.F.R. § 3.501 (d)(2). This action was proper. The law is clear that the Veteran’s right to receive additional disability compensation with respect to K. ceased after their divorce in January 2014. Therefore, the action to remove K. from the Veteran’s compensation award retroactively from February 1, 2014 was proper and the debt which resulted from that action is valid. The Board notes that per a June 2018 VA Committee on Waivers and Compromises decision, the Veteran’s debt was waived. The decision herein has no effect on that waiver grant. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals J. Connolly Attorney for the Board 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.