Citation Nr: 21004394 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-12 526A DATE: January 27, 2021 ORDER The overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $1,837.00 was properly created; the appeal is denied. The appeal pertaining to the issue of entitlement to waiver of recovery of an overpayment of VA compensation benefits in the amount of $1,837.00 is dismissed. FINDINGS OF FACT 1. In a December 1969 rating decision, the Veteran was awarded VA compensation benefits at the 30 percent rate. 2. In August 2004, the Veteran notified the Regional Office (RO) that he was married to E.B. 3. In October 2004, the Veteran was notified that E.B. had been added as his dependent spouse to his compensation award and was provided a VA Form 21-8764, which indicated that additional benefits were included for his spouse and failure to notify the RO in a prompt fashion of a dependency change would result in an overpayment that must be repaid. 4. In April 2010, the Veteran was again notified that he was receiving additional compensation benefits for E.B. as his dependent spouse, was told to notify the RO of any marital changes, and was again furnished a VA Form 21-8764 that reiterated this information. 5. In April 2010, the Veteran initially informed VA that E.B. died in October 2007. 6. In April 2010, the RO notified the Veteran that E.B. had been removed from his award as of November 1, 2007 (the first day of the month following her death). 7. In a May 2010 letter, the Veteran was advised that a debt of $1,837.00 had been created due to the overpayment of disability compensation benefits for his dependent spouse, E.B. 8. In a September 2020 decision, of which the Veteran was notified in November 2020, his debt of $ 1,837.00 was waived in full; thus, there is no remaining case or controversy in regard to his request for a waiver of recovery of overpayment of VA disability compensation benefits. CONCLUSIONS OF LAW 1. The debt due to overpayment of VA compensation benefits in the amount of $1,837.00 was properly created. 38 U.S.C. §§ 5110, 5111, 5112; 38 C.F.R. §§ 3.401, 3.501. 2. As there is no justiciable case or controversy with respect to the Veteran’s request for a waiver of recovery of an overpayment of VA compensation benefits in the amount of $1,837.00, his appeal as to such issue is moot. 38 U.S.C. § 7104; 38 C.F.R. § 20.104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1940 to July 1945 and from June 1946 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 determination by the VA Committee on Waivers and Compromises. In July 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In October 2019, the Board remanded the case and it now returns for further appellate review. 1. Whether the overpayment of VA compensation benefits in the amount of $1,837.00 was properly created. By way of background, in a December 1969 rating decision, the Veteran was awarded VA compensation benefits at the 30 percent rate. 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; 38 C.F.R. § 3.4(b)(2). In August 2004, the Veteran notified the RO that he was married to E.B. In October 2004, he was notified that E.B. had been added as his dependent spouse to his compensation award and was provided a VA Form 21-8764, which indicated that additional benefits were included for his spouse and failure to notify the RO in a prompt fashion of a dependency change would result in an overpayment that must be repaid. In April 2010, the Veteran was again notified that he was receiving additional compensation benefits for E.B. as his dependent spouse, was told to notify the RO of any marital changes, and was again furnished a VA Form 21-8764 that reiterated this information. In this regard, such letter specifically advised him to “Let us know right away if there is any change in your marital status (for example, death, divorce, annulment).” In response to such letter, the Veteran initially informed VA later that month that E.B. died in October 2007. Thereafter, also in April 2010, the RO notified the Veteran that E.B. had been removed from his award as of November 1, 2007 (the first day of the month following her death) and, in a May 2010 letter, he was advised that a debt of $1,837.00 had been created due to the overpayment of disability compensation benefits for his dependent spouse, E.B. The effective date of a reduction of pension or compensation by reason of marriage, annulment or divorce on or after October 1, 1982, or death of a dependent of a payee, shall be the last day of the month in which such marriage, annulment, divorce or death occurs. 38 U.S.C. § 5112(b)(2); 38 C.F.R. § 3.501(d)(2). The law is clear that the Veteran’s right to receive additional disability compensation for E.B. as his dependent spouse ceased after she died. Although the Veteran contends that he is not responsible for the debt as VA should have been aware of the death of E.B. as he reported her death in a timely manner to all agencies from which he received benefits. In this regard, he claims that all other agencies suspended payments immediately, and he assumed VA had too, until he received the April 2010 award letter indicating that she was still included in his award. Thus, the Veteran claims that VA committed error in failing to remove E.B. from his award in a timely manner; however, the record does not support this contention. Specifically, here is no documentary evidence establishing that the Veteran notified the RO of E.B.’s death prior to April 2010. 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. 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. Neither the veteran’s actions nor failure to act must have contributed to payment pursuant to the erroneous award. 38 U.S.C. § 5112(b); 38 C.F.R. § 3.500(b)(1); Jordan v. Brown, 10 Vet. App. 171 (1997) (sole administrative error is not present if the payee knew, or should have known, that the payments were erroneous). VA’s Office of General Counsel has issued a precedential decision indicating that a reduction or discontinuance of benefits based on an erroneous award will be made in accordance with 38 U.S.C. § 3012(b)(10) when it is determined that: (1) The beneficiary was not guilty of an act of commission, or omission which, in whole or in part, caused the erroneous award of benefits and had no knowledge thereof; and (2) VA either: (a) committed an administrative error, including an error of fact (e.g., the VA mistakes or overlooks the facts of record or makes a purely clerical error), or (b) committed an error of judgment (e.g., the VA fails to properly interpret, understand and follow existing Department instructions or regulatory or statutory requirements). VAOPGCPREC 2-90 (July 17, 1989), 55 Fed. Reg. 27757 (1990). Administrative errors include all administrative decisions of entitlement, whether based upon mistake of fact, misunderstanding of controlling regulations or instructions, or misapplication of law. Sole administrative error, however, may be found to occur only in cases where a veteran neither had knowledge of, nor should have been aware of, the erroneous award. Sole administrative error contemplates that neither a veteran’s actions nor his/her failure to act contributed to payment pursuant to an erroneous award. However, in this case, the Veteran continued to receive the additional benefits for E.B. as his dependent spouse after her death. Thus, he should have been aware that VA had not reduced his benefits. Therefore, not only is there no record of a notification from the Veteran of E.B.’s death, but he continued to receive the same level of benefits when he asserts that his benefits should have been reduced. As such, he contributed to the existence of the debt by not reporting that he was receiving payments in excess of what he was entitled to receive. Based on the evidence of record, the overpayment created is not shown to be the result of sole administrative error. In order for an overpayment to be the result of sole administrative error, and for the Veteran to consequently not be liable for the debt, the Veteran must not have known, or should not have known, that the benefits in issue were erroneous. A finding of sole administrative error requires not only error on the part of VA, but that the beneficiary be unaware that the payments are erroneous. 38 U.S.C. § 5112(b)(9), (10); 38 C.F.R. § 3.500 (b)(2); Jordan, 10 Vet. App. 171. In this case, the Veteran is shown to have received notice that he must immediately inform VA of any change in the status of his dependents, but it is not shown to have notified VA of the death of E.B. at any point prior to April 2010. Further, he was not eligible to receive benefits based on a dependent spouse after her death, and should have known that, absent providing notice of the death of E. to VA, his receipt of benefits based on that dependent spouse was erroneous. In view of the finding that the overpayment was not the result of sole administrative error on the part of VA, the Board finds that the debt was valid and was properly created as of November 1, 2007 (the first day of the month following E.B.’s death). 2. Entitlement to waiver of recovery of an overpayment of VA compensation benefits in the amount of $1,837.00. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See e.g., 38 C.F.R. § 20.104. In essence, a “case or controversy” involving a pending adverse determination to which the appellant has taken exception no longer exists. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994). In the instant case, in a September 2020 decision, of which the Veteran was notified in November 2020, his debt of $ 1,837.00 was waived in full; thus, there is no remaining case or controversy in regard to his request for a waiver of recovery of overpayment of VA compensation benefits. Consequently, his appeal of such matter is moot and must be dismissed. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals J. Connolly, 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.