Citation Nr: 20021862 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 18-35 705 DATE: March 27, 2020 ORDER The overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $15,946.48 was properly created; the appeal is denied. REFERRED The issue of entitlement to waiver of recovery of an overpayment of additional VA compensation benefits for a dependent spouse in the amount of $15,946.48 is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. An August 1995 RO letter informed the Veteran that he had been awarded additional benefits for his spouse (B.), and 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 failure to notify the RO in a prompt fashion of a dependency change would result in an overpayment. 2. In March 2003, the Veteran was again provided a VA Form 21-8764 which stated that the failure to notify the Regional Office (RO) in a prompt fashion of a dependency change would result in an overpayment. 3. In January 2009, the Veteran and B. divorced. 4. The Veteran and G. married in April 2014. 5. In August 2017, the RO received a VA Form 686C from the Veteran reflecting his marital status changes. 6. The RO removed B. from the Veteran’s award of VA disability compensation benefits effective February 1, 2009 and added G. to the award effective September 1, 2017, resulting in the creation of an overpayment. CONCLUSION OF LAW The overpayment of VA compensation benefits in the amount of $15,946.48 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 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. An August 1995 RO letter informed the Veteran that he had been awarded additional benefits for his spouse (B.), and that he should promptly inform that VA office 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 failure to notify the RO in a prompt fashion of a dependency change would result in an overpayment. In March 2003, the Veteran was again provided a VA Form 21-8764 which stated that the failure to notify the RO in a prompt fashion of a dependency change would result in an overpayment In January 2009, the Veteran and B. divorced. Although the Veteran indicated that he notified VA, there is no record of such notification. He submitted a copy of an April 2009 RO letter which he believes reflects that the RO knew of his change in marital status. The Veteran was notified in that letter that he was receiving additional benefits for a spouse and a daughter. The Veteran testified at a Board hearing that since the letter said that if an adjustment to his benefits resulted in an overpayment then he would be notified of the overpayment, this showed that the RO knew of his divorce. However, this letter told the Veteran of his overall rate of benefits as of January 1, 2009, and what the rate would be when S. (his daughter) was later removed. There was no intent in the letter to acknowledge a divorce from B. as the letter specifically indicated that the Veteran was still receiving benefits for a spouse. Thus, the Veteran should have known that he was receiving benefits to which he was no longer entitled. However, the Board notes that the Veteran apparently misunderstood this letter. Nonetheless, that consideration regarding his fault pertains to the matter of entitlement to a waiver, which has been referred to the AOJ. Even if the Veteran misunderstood what the letter stated, that does not afford him continued entitlement to benefits for B. as his spouse; once they divorced such entitlement ceased. Thereafter, the Veteran and G. married in April 2014. Although the Veteran indicated that he told VA as well as other government agencies, the record does not show that he notified the RO. Rather, the initial notification was received several years later. On February 1, 2017, the Veteran notified the RO of his marital changes. Thereafter, within a few days, he submitted supporting documentation including his divorce decree and marriage license. In August 2017, the RO sent the Veteran a letter that indicated that for the RO to begin processing his claim to add a dependent, he must complete, sign, and return a VA Form 21-686C, Declaration of Status of Dependents. The Veteran then completed and submitted that form the same month. The RO then retroactively removed B. as the Veteran’s spouse from his award of VA compensation benefits effective February 1, 2009, the first day of the month following their divorce The RO also added G. as the Veteran’s spouse to his award of VA compensation benefits effective September 1, 2017, the first day of the month following notice of their marriage. See 38 U.S.C. §§ 5111, 5112. The retroactive adjustments to the Veteran’s VA compensation benefits resulted in an overpayment debt of $15,946.48 which was the amount of additional VA benefits the Veteran was paid for a spouse when he was divorced and had no spouse and until the time RO received the required VA Form 686C (effective from the first day of the next month). In sum, in the August 1995 letter, the RO informed the Veteran that he should promptly inform the RO of any change in the status of his dependents. He was provided a VA Form 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 result in an overpayment that would need to be repaid. The Veteran was thereafter again provided that form in March 2003 and then in the April 2009 letter. He did not notify VA of any dependency changes until February 2017, and did not complete the required form until August 2017. The Board observes that the April 2009 letter advised him that he was receiving additional benefits for a spouse (which would have been terminated upon notification of the divorce). There is no documentary evidence in the record of any notification of a change in dependency status prior to the time indicated. 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 the time indicated. For the period of time after the Veteran’s divorce from B., he was not married to her and was thus not entitled to additional benefits for her as a spouse. The RO terminated the Veteran’s additional benefits for her for that period. This action was proper. The RO did not resume additional benefits for a spouse until the Veteran had remarried and provided the required form to the RO. Thus, the Board finds that the overpayment in this case was properly created. To the extent that the Veteran feels this is unfair that a portion of the overpayment was created during a period of time when he was technically married regardless of to whom; that is, from the date of his marriage in April 2014 onward, rather than from the date of the receipt of the notice via the required form onward, that argument pertains to the consideration of a waiver of the recovery of the debt which is not before the Board at this time, but has been referred to the AOJ. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.