Citation Nr: 21066267 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 19-35 256 DATE: October 29, 2021 ORDER The overpayment of VA compensation benefits in the amount of $8,256.00 was not properly created and the appeal is granted. FINDINGS OF FACT 1. In a September 2013 letter, the Regional Office (RO) informed the Veteran that she had been awarded additional benefits for her spouse, A., and she was informed that she should promptly inform that office of VA of any change in the status of her dependents. 2. In December 2013, the Veteran and A. divorced. 3. VA was notified promptly of the Veteran's divorce, but timely action was not taken to remove A. from the Veteran's award of VA compensation benefits. 4. In March 2018, the RO removed A. from the Veteran's award of VA compensation benefits effective January 1, 2014 to March 31, 2018; this action resulted in the creation of an overpayment in the amount of $8,256.00. 5. The Veteran neither had knowledge of nor should have been aware of the erroneous award of benefits for her spouse after their divorce and the error in the spouse not being removed was not due to the Veteran's actions or failure to act; the overpayment was the result of sole administrative error. CONCLUSION OF LAW The overpayment of VA compensation benefits in the amount of $8,256.00 was not properly created. 38 U.S.C. §§ 5110, 5112; 38 C.F.R. §§ 3.401, 3.501. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1981 to January 1982 and from November 1982 to April 2002. The case is on appeal from a March 2018 decision. Whether an overpayment in the amount of $8,256.00 was properly created. I. Legal Criteria 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. 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 C.F.R. § 1.911. An overpayment may arise from virtually any benefits program administered pursuant to VA law. In order for the Board to determine that the overpayment was not properly created, it must be established that the beneficiary was legally entitled to the benefits in question or, if there was no legal entitlement, then it must be shown that VA was solely responsible for the erroneous payment of benefits. Sole administrative error may be found to occur only in cases where the Veteran 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). If the debt was the result of sole administrative error, the effective date of the reduction of benefits would be the date of the last payment based on this error, and consequently there would be no overpayment charged to the Veteran for the portion of the overpayment attributable to administrative error. See 38 U.S.C. § 5112(b)(10); 38 C.F.R. § 3.500(b)(2). II. Analysis The Veteran challenges the propriety of the creation of the overpayment of VA compensation benefits. She maintains that the but for the RO's failure to timely act on the notice of her divorce, the overpayment would not have been created. See January 2016 Correspondence. Initially, the Board notes that 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 September 2013, the RO informed the Veteran that her award included an additional amount for her spouse, A., and that she should promptly inform that office of VA of any change in the status of her dependents and that a failure to do so might result in an overpayment which must be repaid. In February 2014, the Veteran notified her accredited representative of her name change due to a divorce from A. and provided a copy of a December 2013 ENTRY GRANTING NAME CHANGE which states that the Judgment Decree of Divorce was filed with the court on December 4, 2013. See January 2018 Court documents. There is no indication that the Veteran's representative duly notified VA of the Veteran's divorce. In addition, July 2015 records associated with an inquiry reflect the Veteran's report of having informed her representative of her divorce and name change a year earlier. See August 2015 Congressionals. The RO's response to the inquiry reflects acknowledgment of the Veteran's name change. Id. Further, in December 2017, in association with dependency claims pertaining to her children, the Veteran reiterated that she was divorced from A., and it was noted that she had recently discovered that her name had not been changed when she reviewed her record through VA's eBenefits website. See December 2017 VA 27-0820 Report of General Information. In a March 2018 letter, the Veteran was advised that the RO retroactively removed A. as her spouse from her award of VA compensation benefits. The retroactive adjustments to the Veteran's VA compensation benefits resulted in an overpayment debt of $8,256.00, from January 1, 2014, the first day of the month following the divorce, to March 31, 2018, which was the amount the Veteran was paid additional VA benefits for A. when she was divorced from A. The Board has considered whether there was sole administrative error in the payment of additional compensation. In this case, VA was promptly notified of the Veteran's divorce. Furthermore, the RO's February 2016 letter reflecting the Veteran's name change and that she was being paid for two dependents is absent reference to a spouse. Thus, it is reasonable that the Veteran thought VA was aware of her marital status and was paying her accordingly for her two dependent children or otherwise based on VA law and regulation. With the paucity in the record of notices to the Veteran, 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 their divorce 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 administrative error. After consideration of the evidence of record, the Board finds that the RO failed to act in a timely manner for the removal of A. as the Veteran's spouse from her compensation award upon timely notice of their divorce. It follows that the effective date of the reduction of benefits in the present case would be the date of the last payment based on this error, and consequently there would be no overpayment charged to the Veteran. 38 U.S.C. § 5112(b)(10); 38 C.F.R. §§ 3.500(b)(2). For the reasons set forth above, the Board finds that the overpayment at issue was based solely due to an administrative error and, consequently, the debt was not properly created. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.