Citation Nr: 20048087 Decision Date: 07/17/20 Archive Date: 07/17/20 DOCKET NO. 17-52 351 DATE: July 17, 2020 ORDER The overpayment debt of Department of Veterans Affairs (VA) additional compensation benefits for a dependent spouse in the amount of $7,462.05 was properly created; the appeal as to the propriety of the overpayment is denied. FINDINGS OF FACT 1. The Veteran is service-connected for several disabilities and has been in receipt of a total disability rating due to unemployability (TDIU) since October 29, 1998. 2. The Veteran was awarded additional compensation benefits for a dependent spouse, J.W.A., effective January 1, 2006; she was provided a letter and a VA Form 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. 3. In September 2010, the Veteran and J.W.A. divorced. 4. The RO first received notice from the Veteran of her divorce from J.W.A. in November 2014. 5. The action by the RO to remove J.W.A. retroactively from the Veteran’s award resulted in the creation of an overpayment in the amount of $7,462.05. CONCLUSION OF LAW The overpayment debt in the amount of $7,462.05 was properly created. 38 U.S.C. §§ 5110, 5111, 5112 (2012); 38 C.F.R. §§ 3.401, 3.501 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from July 1994 to September 1996. This matter comes before the Board from an October 2016 decision by the Department of Veterans Affairs (VA) Debt Management Center (DMC). The Veteran provided hearing testimony before the undersigned in May 2020. A transcript of that hearing is within the claims file. 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 has been assigned a TDIU rating since October 29, 1998. Thus, 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 February 2006, the Veteran submitted a VA Form 21-686c in order to add J.W.A. as a dependent following their December 31, 2005 marriage. A subsequent letter sent to the Veteran in June 2006 shows VA notified her of her new award, effective January 1, 2006, which included her spouse and child. This letter included notification of the Veteran’s responsibility to inform VA immediately if there is any change in the number or status of her dependents and also indicated the failure to notify VA would result in an overpayment that must be repaid. She was furnished a VA Form 21-8764 at this time, which also states her responsibility to notify VA immediately if there is any change in the number or status of her dependents. In November 2014, the Veteran submitted a VA Form 21-686c in order to add her spouse, J.M.S., to her award as a dependent. This form included a notation that she divorced J.W.A. on September 21, 2010. In September 2016, the Regional Office (RO) sent the Veteran a letter notifying her that they were taking action to remove J.W.A. from her award effective October 1, 2010, the first day of the month following her reported date of divorce, and adding J.M.S. to the award effective November 1, 2014, the first day of the month following the date she was married. This action resulted in an overpayment debt, which the Veteran was notified of in the October 2016 DMC decision on appeal. The Veteran has appealed this debt, alleging it is invalid because she reports she notified VA in 2010 of her divorce from J.W.A. such that VA is solely at fault in the creation of the debt. At her May 2020 Board hearing, the Veteran indicated that she notified VA immediately in 2010 of her divorce in order to have her name changed. She reported working with a V.G., a VA claims representative stationed at the VA Medical Center in New Bern, in 2010 to get the paperwork in to change her name. She suggested at the time of the hearing that it is obvious that she submitted her divorce decree since all communication coming from VA reflected her name change after the September 2010 divorce. However, a review of the record reveals that VA never utilized a change in last name when referencing the Veteran in letters between the time of the June 2006 letter acknowledging J.W.A. as a dependent and the time of the September 2010 divorce. She was always addressed as W.K.R. by VA. Moreover, all subsequent communication with the Veteran continues to address her as W.K.R. The evidence within the claims file simply does not show a name change, so communication from VA to the Veteran does not establish that the Veteran submitted evidence of her divorce in 2010. In fact, the only document within the claims file in 2010 is an April 2010 letter with the annual summary of the Veteran’s VA benefits. As to the Veteran’s report at her Board hearing that a V.G. from the VA assisted her with her paperwork in 2010, there is no evidence showing assistance from V.G. in 2010. The claims file includes a December 2005 statement from the Veteran commending the assistance of V.G. related to a prior divorce and name change. There is no evidence of similar assistance in 2010. The Board notes that at the time of the hearing, the Veteran did explain that she has trouble remembering dates. The Board indeed understands this to be no fault of the Veteran’s; however, it does appear that V.G. actually assisted the Veteran in 2005, not 2010. Moreover, even if she had submitted this information promptly, there would need 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 Appellant neither had knowledge of nor should have been aware of the erroneous award. Further, such error contemplates that neither the Veteran’s actions nor her 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 September 2010. As such, she should have had knowledge of the award and she contributed to it since she continued to receive and negotiate those payments. Thus, there was no sole VA error. In sum, the Veteran was informed in June 2006, at the time J.W.A. was added to her award, that she should promptly inform VA of any change in the status of her dependents. She was also provided a VA Form 21-8764 which stated that failure to notify VA in a prompt fashion of a dependency change would result in an overpayment that would need to be repaid. The evidence shows she divorced J.W.A. in September 2010. There is no evidence within the file showing a report of the Veteran’s divorce from J.W.A. at any time prior to the November 2014 VA Form 21-686c. VA then took action to remove J.W.A. from the Veteran’s award, effective October 1, 2010, the first day of the month following the Veteran’s divorce. This retroactive removal of J.W.A. resulted in the creation of an overpayment of $7,462.05. This action was proper as, 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). The law is clear that the Veteran’s right to receive additional disability compensation with respect to J.W.A. ceased after their September 2010 divorce. Because the debt created was proper, the Veteran’s appeal as to the propriety of the creation of the debt is denied. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, 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.