Citation Nr: 21068309 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 19-28 594 DATE: November 9, 2021 ORDER The Veteran's former spouse B. was properly removed from his Department of Veterans Affairs (VA) compensation award effective November 1, 2009; the appeal is denied. The Veteran's current spouse, C., may not be added to the Veteran's VA compensation award earlier than October 1, 2015; the appeal is denied. The overpayment of VA compensation benefits in the amount of $13,606.51 was properly created; the appeal is denied. REMANDED The matter of entitlement to a waiver of the recovery of the overpayment of additional VA compensation benefits paid for a dependent spouse is remanded. FINDINGS OF FACT 1. In an October 1983 rating decision, the Regional Office (RO) increased the Veteran's combined rating for service-connected disabilities to at least 30 percent from October 1981. 2. In October 1983, the Veteran reported that B. was his spouse. 3. In November 1983, the Veteran was notified that he was receiving additional compensation benefits for his dependent spouse B.; he was furnished a VA Form 21-8764. 4. In February 2016, in a telephone contact, the Veteran reported that he and B. divorced in January 2009. 5. In a March 2016 Declaration of Status of Dependents, the Veteran reported that he divorced B. in January 2009 and married C. in October 2009. 6. The RO retroactively removed B. from the Veteran's award of compensation benefits from the divorce date; that action resulted in an overpayment of $13,606.51. 7. The RO added C. as the Veteran's spouse from October 1, 2015. CONCLUSIONS OF LAW 1. The Veteran's spouse, B., was properly removed from his VA compensation award effective November 1, 2009. 38 U.S.C. §§ 5110, 5111, 5112; 38 C.F.R. §§ 3.401, 3.501. 2. The Veteran's spouse C. may not be added to his VA compensation award earlier that October 1, 2015. 38 U.S.C. §§ 5110, 5111, 5112; 38 C.F.R. §§ 3.401, 3.501. 3. The overpayment of VA compensation benefits in the amount of $13,606.51 was properly created. 38 U.S.C. §§ 5110, 5111, 5112; 38 C.F.R. §§ 3.401, 3.501. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In an October 1983 rating decision, the RO increased the Veteran's combined rating for service-connected disabilities to at least 30 percent from October 1981. 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 October 1983, the Veteran reported that B. was his spouse. In November 1983, in pertinent part; the Veteran was notified that he was receiving additional compensation benefits for his dependent spouse; he was furnished a VA Form 21-8764. This form stated that the Veteran should notify VA immediately if there is any change in the number or status of his dependents. He was advised that the failure to do so would result in a creation of an overpayment in his account. In February 2016, the RO contacted the Veteran to confirm B.'s information. At that time, the Veteran reported that he divorced B. in January 2009. He reported that he told the CHAMPVA personnel that he was divorced. Thereafter, in a March 2016 Declaration of Status of Dependents, the Veteran reported that he divorced B. in January 2009 and married C. in October 2009. At his recent personal hearing before the Board of Veterans' Appeals (Board), the Veteran related that he informed the CHAMPVA personnel (as well as calling another VA telephone number) that he married C. in October 2009 and that B. was removed and then C. was added to those medical benefits. Thus, he thought that VA was aware of his change in dependency status. Written statements can be accepted as evidence of certain dependency events, such as marriage, when certain information is included such as the date and month of marriage and the full name of a spouse. See 38 C.F.R. § 3.204; see also McColley v. West, 13 Vet. App. 553, 557 (2000). However, in this case, although the Veteran is credible in his statements that he reported the changes in his dependency status to CHAMPVA and thought VA was thereby notified of the changes, it appears that the statements were made orally or that the Veteran did not provide any written statements to the RO with sufficient information to update his dependency. Therefore, unfortunately, while the Board finds that the Veteran is credible, the record was insufficient for the RO to take action to remove B. as his spouse and to add C. as his spouse with regard to his compensation benefits at that time. In a May 2016 letter, the Veteran was notified of a grant of an increase in the Veteran's service-connected benefits, effective from September 1, 2015. He was told that he was being paid as a single veteran with no dependents. He was informed that B. was being removed May 1, 2016 because he was divorced from B. in April 2016. The Board notes that this was inaccurate because they divorced in January 2009. He was also told that he would receive separate correspondence regarding an adjustment of dates for his dependency and that the RO must adjust the removal date of his ex-spouse, B. back to his date of divorce. The RO said that the RO would then add his new spouse, C. from the date the Veteran told the RO about her. The Veteran was then advised that he owed a debt of $13,606.51 due to the dependency adjustment. He requested a waiver of the recovery of that debt which has been referred to the Committee on Waivers and Compromises (Committee), but has not been adjudicated yet, and is addressed in the Remand portion of this decision. In a July 2016 letter, the Veteran was told that B. was being removed from his award effective January 12, 2009 due to the divorce (which was mistakenly listed as occurring in April 2016); the Board notes that the reduced payment commenced as of February 1, 2009, the date of the first day of the month when the Veteran was no longer married. 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 also 38 C.F.R. § 3.501 (d)(2). The Veteran's retroactive termination of payment for B. was effective February 1, 2009, the first day of the month following their January 2009 divorce. That action was proper. The law and regulation are clear that the Veteran's entitlement to benefits for her a dependent spouse ceased when they divorced. Thus, the appeal regarding that termination date is denied. In September 2016, after receiving the requisite documentation, the RO notified the Veteran that C. would be added as his spouse from October 1, 2015. The RO added C. effective October 1, 2015. Under 38 C.F.R. § 3.401 (b) it is provided that the effective date for payment due to a claimant based on dependency shall be the latest of: (1) the "date of claim"; (2) the date dependency arises; (3) the effective date of the qualifying disability, so long as evidence of dependency is received by VA within one year of notification of such rating; or (4) the date of commencement of the Veteran's award. The "date of claim" includes the "date notice is received of the dependent's existence, if evidence is received within one year of VA's request. Id.; see McColley. The RO, including in the Statement of the Case, indicated that C. was added October 1, 2015 because that is the first date of the full month after the qualifying disability rating of September 10, 2015 for the disability compensation. The RO indicated that this is the earliest date that C. can be added to the Veteran's award because he provided evidence of dependency within 1 year of notification of this rating action. The Board notes this does not appear proper. The May 2016 rating decision (and notice letter) provided a rating of over 30 percent for a disability to the Veteran effective from September 2015. Thus, the Veteran was entitled via his rating for additional benefits for dependents (although he was already qualified). The notice letter indicated that B. was removed, and that C. would be added from the date RO knew of her. It appears that the proper effective date would have been the first day of the month following the adequate notice of the marriage to C. in March 2016 (date of claim), so payment from April 1, 2016, as the later date. However, since this would result in a larger overpayment, the Board will not disturb the RO finding. However, there is no basis to add C. from an earlier date. Even though the Board finds credible that the Veteran thought VA knew of the changes in his dependency status via his conversation with CHAMPVA, the RO did not have the sufficient dependency information at that time to remove B. and add C.; moreover, at this junction, if that notice to CHAMVA is accepted as the "date of claim," the requisite documentation of marriage was not received until recently and the later date would then be the effective date of the qualifying disability ( so long as evidence of dependency was received by VA within one year of notification of such rating), which would be the already assigned October 1, 2015 date. As such, an earlier date to add C. as the spouse cannot be assigned and the claim for such must be denied. REASONS FOR REMAND The Veteran presented testimony before the undersigned at a Board hearing with regard to both the creation and validity of the debt as well as entitlement to a waiver of that debt. Thus, while it appears that the Committee has not yet considered the waiver issue, the Board will address that matter in this Remand to afford the Veteran all due process consideration. The Veteran argued that he should only owe the overpayment due to the monies paid to him for a dependent spouse for the months of February 2009 through October 2009, when did not have a spouse because he was not married. He indicated that if the debt was waived for the period of time from the date of his marriage to C. forward, that this partial waiver would satisfy his appeal. The Board notes that the Veteran presented arguments at his Board hearing related to the elements of equity and good conscience. Specifically, his argument regarding his general entitlement to continued benefits for a dependent spouse from the date he married C. pertains to the element of whether recovery would defeat the purpose of the benefits and whether withholding of benefits or recovery would nullify the objective for which benefits were intended since the benefits are intended for a veteran married with a spouse and he was married at all time other than those few months in 2009 following his divorce from B. and then his subsequent marriage to C. The Board finds the Veteran's account credible in his report that he believed that VA was aware of his dependency changes since that change was made to his CHAMPVA benefits once he reported the change to him; thereby mitigating the fault element. The Veteran also testified that he had experienced some degree of financial hardship, another element of equity and good conscience. The matter is REMANDED for the following action: Refer the claim for a waiver of the recovery of the debt to the Committee. The Committee should consider the debt of $13,606.51 taking into consideration any adjustment that has been made to reflect the addition of C. as a dependent spouse to the Veteran's compensation benefits as of October 1, 2015. In considering the elements of equity and good conscience, the Committee should consider the Veteran's Board hearing testimony regarding the elements of fault, whether recovery would defeat the purpose of the benefits and whether withholding of benefits or recovery would nullify the objective for which benefits were intended, and hardship, and well as his statements that a waiver of the debt incurred from the period beginning when he married C. onward would satisfy his claim. If the Committee determines that a waiver is warranted for that portion of the debt, the Agency of Original Jurisdiction should ensure with the Veteran that this action satisfies his claim. If any issue continues to be appealed to the Board, the Veteran and his representative should be provided a supplemental statement of the case and the case should be returned for consideration by the undersigned who conducted the Board hearing. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Connolly 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.