Citation Nr: 20004699 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 16-15 570 DATE: January 21, 2020 ORDER The overpayment of Veterans Affairs (VA) compensation benefits in the amount of $3,370.95 was properly created; the appeal is denied. FINDINGS OF FACT 1. In July 2002, the Veteran was notified that he had been awarded additional benefits for his spouse, S.P. 2. In June 2015, the Veteran reported he and S.P. had divorced in November 2013. 3. In August 2015, the Veteran was notified that S.P. had been removed from his award effective December 1, 2013. 4. The action to remove S.P. retroactively from the Veteran’s award resulted in the creation of an overpayment in the amount of $3,370.95. CONCLUSION OF LAW The overpayment of VA compensation benefits in the amount of $3,370.95 was properly 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 had active service from June 1969 to December 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 letter from the Department of Veterans Affairs (VA) Regional Office (RO), notifying him that his benefits had changed due to change in his dependents. The Board notes that in December 2015, the Committee on Waivers and Compromises denied the Veteran’s request for a waiver of overpayment. The Veteran has not appealed that decision, so it is not before the Board. Whether the overpayment of Veterans Affairs (VA) compensation benefits in the amount of $3,370.95 was properly created 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 addition, when the Veteran was awarded benefits for his spouse, S.P., in July 2002, he was informed that the failure to notify the RO in a prompt fashion of a dependency change would result in an overpayment. In an undated letter, the RO notified the Veteran that it proposed to reduce his compensation benefits since he did not respond to a request to confirm his dependents. In a June 2015 response, the Veteran stated he and S.P. had divorced in November 2014. However, he also submitted his judgment of divorce showing a divorce date of November 2013. In an August 2015 letter, the Veteran was informed that S.P. had been removed from his award effective December 1, 2013, because of their divorce in November 2013. For the period of December 2013 to August 2015, VA paid the Veteran additional VA compensation for S.P. in the amount of $3,370.95. This amount represents the overpayment which the Veteran was notified of in a separate September 2015 letter from the Debt Management Center. In sum, the Veteran was informed that he should promptly inform the RO of any change in the status of his dependents. He failed to notify VA for almost two years following his divorce from S.P. The Board recognizes that after VA was notified of the divorce, there was a several-month period of time where no action was taken. Accordingly, the Board has considered whether there was sole administrative error in the payment of the additional benefits for a spouse due to the delay. 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 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’s delay in notifying VA of his divorce contributed to continued payment of his erroneous award for several months. Moreover, the Veteran continued to be paid at the same rate after he reported his divorce from S.P.; in other words, there was no reduction in his benefits after he reported the divorce. Thus, the Veteran also should have been aware that he was erroneously receiving benefits for S.P. because there was no decrease in his benefits following his notification of their divorce. The RO terminated the Veteran’s additional benefits for S.P. from the time of their divorce onward. The law is clear that the Veteran’s right to receive additional disability compensation with respect to S.P. ceased after their divorce. The Board acknowledges the Veteran’s January 2020 request for an audit, but finds that remand is unnecessary to decide the claim, and   additionally points to the Veteran’s March 2019 statement that he agreed overpayment was justified for the timeframe determined by the RO and the Debt Management Center. For these reasons, the claim is denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dean, 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.