Citation Nr: 20052958 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 17-22 292A DATE: August 10, 2020 ORDER The overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $3,266.82 was not properly created and the appeal is granted. FINDING OF FACT 1. In June 2009, the RO informed the Veteran that she had been awarded additional benefits for her spouse and she was informed that she should promptly inform VA of any change in the status of her dependent; she was provided a VA Form 21-8764 which reiterated that additional benefits were included for her spouse and that failure to notify VA in a prompt fashion of a dependency change would result in an overpayment. 2. In November 2011, the Veteran’s spouse died. 3. The Veteran notified VA promptly, within one month, of his death, but no action was taken to remove him from her award. 4. In May 2015, the Veteran submitted a VA Form 21-686c requesting that her child be added to her award; this form noted the November 2011 death of her husband. 5. The RO removed the Veteran’s husband from her award of VA disability compensation benefits effective December 1, 2011; this action of the RO resulted in the creation of an overpayment. 6. The Veteran neither had knowledge of, nor should have been aware of the erroneous award of benefits for her spouse after his death and the error in the spouse not being removed was not due to the Veteran’s actions or failure to act. CONCLUSION OF LAW The overpayment of VA compensation benefits in the amount of $ 3,266.82 was not 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 January 2007 to May 2007 and from January 2008 to January 2009, with additional years if service in the United States Army National Guard. The matter on appeal comes before the Board from an October 2015 decision of the Regional Office (RO). The RO in that letter notified the Veteran that her husband had been removed from her award effective December 1, 2011. In October 2015, the Veteran submitted a notice of disagreement and indicated this debt is improper. The Veteran was later notified, in December 2015, of the $3,266.82 debt assessed against her due to the retroactive removal of her spouse from her award. The Veteran has perfected an appeal as to the validity of this debt. 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 June 2009, the RO informed the Veteran that she had been awarded additional benefits for her spouse and that she should promptly inform that office of VA of any change in the status of her dependent. She was provided a VA Form 21-8764 which reiterated that additional benefits were included for her spouse and that failure to notify the RO in a prompt fashion of a dependency change would result in an overpayment. Unfortunately, the Veteran’s spouse died on November [REDACTED], 2011. The Veteran notified VA of his death in a statement received on December 28, 2011, less than one month after his death. The Veteran filed for VA burial benefits for her deceased spouse in January 2012, less than two months after his death. Also in January 2012, VA sent a letter to the Veteran confirming receipt of information related to her husband’s death. However, it was not until the Veteran’s submission of a VA Form 21-686c in May 2015 that VA recognized the Veteran’s spouse had died. The RO then notified the Veteran of the removal of him from her award and assessed the retroactive debt. VA undoubtedly received the Veteran’s notification of her husband’s death and stopped his VA benefits and awarded the VA burial benefits, but overlooked the fact that the Veteran was indeed his spouse and failed to recognize that her benefits should also be amended at that time. The Veteran maintains that the error in this case was on VA’s part as she notified VA immediately of her husband’s death. 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 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 notified VA promptly of her husband’s death. The record is devoid of any further notifications of her rate of payment or that she was being paid for a spouse. Several letters related to the adjustment of the Veteran’s benefits for Drill Pay were sent to the Veteran between the November 2011 death of her husband and the May 2015 VA Form 21-686c, none of which referenced the payment of additional benefits for a spouse. Given the Veteran’s clear and prompt notification to VA that her husband had died and the failure of VA to mention the dependency benefit in numerous subsequent letters related to her benefits, it is reasonable that she thought VA was aware of her current marital status and also reasonable that she assumed she was being paid accordingly. The Board finds that the Veteran neither had knowledge of, nor should have been aware of the erroneous award of benefits for her spouse after his death, and the error in the spouse not being removed was not due to the Veteran’s actions or failure to act. Rather, it was solely due to the RO’s failure to act, which, in this case, constitutes sole VA administrative error. Because the debt was created due to sole VA administrative failure, this debt is not valid, and the Veteran’s appeal is granted. H.M. WALKER 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.