Citation Nr: 20035489 Decision Date: 05/21/20 Archive Date: 05/21/20 DOCKET NO. 19-12 875 DATE: May 21, 2020 ORDER The overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $2,502.00 was properly created; the appeal is denied. REFERRED The issue of waiver of the overpayment raised in the October 2014 Statement in Support of Claim and Financial Status Reports is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. In June 2010, the Veteran submitted VA Form 21-686c, Application Request to Add and/or Remove Dependents and listed C.M.W. as his biological child. C.M.W.’s birthday was listed as October 1, 1989. 2. In a January 2011 Notification Letter, the Veteran was informed that his payment included an additional amount for his dependents, to include C.M.W., effective August 1, 1999. 3. In March 2011, the Veteran notified VA that C.M.W. began a course of full-time study at a college starting on January 10, 2011. 3. Because C.M.W. was not enrolled in school between October 1, 2007, the date of her 18th birthday, and January 10, 2011, C.M.W. was remove as a dependent for purposes of dependency compensation benefits effective October 1, 2007. 4. The overpayment in the amount of $2,502.00 was not solely the result of VA administrative error. CONCLUSION OF LAW The overpayment of additional dependency compensation in the amount of $2,502.00 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 served on active duty from December 1990 to May 1991. Validity of the debt 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. The law provides for the rates of disability compensation, and for payment of additional compensation for dependents of veterans who carry a disability rating of 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 child. A “child” for VA benefits purposes must be unmarried and must be either under the age of 18, have become permanently incapable of self-support before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. See 38 U.S.C. § 101(4)(A)(ii); 38 C.F.R. § 3.57(a). 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. It is not considered administrative error for VA to continue sending monthly payments after the Veteran notified VA of his changed status, and VA’s delay in administratively processing the adjustment to the rate of compensation is also not considered administrative error. Dent v. McDonald, 27 Vet. App. 362, 374 (2015). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran disputes the overpayment that was created after his dependent child, C.M.W., was removed from his award. On his July 1999 Application for Compensation benefits, the Veteran reported having four dependents, to include his daughter C.M.W. In May 2010, the Veteran was granted service connection for his disability, effective July 19, 1999. In June 2010, the Veteran submitted VA Form 21-686c. The form, in pertinent part, states that a veteran who has a combined disability rating of at least 30 percent is entitled to disability compensation for children under age 18 or children that are between the ages of 18 and 23 who are attending school. On the form, the Veteran noted that C.M.W.’s birthday was October 1, 1989. In a January 2011 Notification Letter, the Veteran was informed that his payment included an additional amount for his dependents, effective August 1, 1999. The letter instructed the Veteran to inform VA if there was any change in the status of his dependents. VA also provided the Veteran with VA Form 21-674, Request for Approval of School Attendance. VA asked the Veteran to complete and submit the form with information showing that C.M.W. continued to be a student from October 1, 2007. In March 2011, the Veteran submitted VA Form 21-674. He stated that C.M.W. began college in January 2011. VA added C.M.W. to the Veteran’s award effective April 1, 2011. In June 2011, the Veteran disagreed. He stated that due to financial difficulties, C.M.W. was unable to attend college right after she graduated from high school. So, she began college in 2011 after his disability rating was increased to 40 percent. In an August 2014 Notification Letter, VA informed the Veteran that it removed C.M.W. from the Veteran’s award effective October 1, 2007. The removal resulted in an overpayment. The Debt Management Center assessed a debt of $2,502.00. The Veteran disagreed with the creation of the debt. He stated that he did not understand why he owed the money. He requested an audit. The January 2015 audit confirmed the amount due. In its March 2019 Statement of the Case, VA explained that the Veteran had received additional benefits based on C.M.W. being a dependent child even though she had already attained the age of 18, and there was no evidence showing that she was attending college until January 10, 2011. As such, VA removed C.M.W. as a dependent for purposes of dependency compensation benefits effective October 1, 2007, the date C.M.W. reached her 18th birthday. Based on the evidence of record, the Board finds that the creation of the debt is valid. Because C.M.W. had reached the age of 18 and was not enrolled in school, there was no entitlement to additional dependency compensation based on her being a dependent and/or school child. See 38 U.S.C. § 101(4)(A)(ii); 38 C.F.R. § 3.57(a). 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. The Board notes that in June 2010, the Veteran submitted VA Form 21-686c. The form noted that a veteran who has a combined disability rating of at least 30 percent is entitled to disability compensation for children under age 18 or children that are between the ages of 18 and 23 who are attending school. In June 2011, the Veteran stated that C.M.W. did not begin college right after completing high school, but she began college in January 2011. This date was after her 21st birthday. Therefore, the Board finds that the Veteran knew or should have known that his compensation award should have been adjusted based on C.M.W. attaining the age of 18 and not pursuing a course of instruction at an approved educational institution. Because the Veteran should have been aware that he was erroneously receiving benefits for C.M.W., 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 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.