Citation Nr: 21073979 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 19-07 703 DATE: December 13, 2021 ORDER The Veteran's former spouse E. was properly removed from his Department of Veterans Affairs (VA) compensation award effective May 1, 2013; the appeal is denied. The Veteran's current spouse, J., may not be added to the Veteran's VA compensation award earlier than September 29, 2017; the appeal is denied. REFERRED The issue of entitlement to waiver of recovery of the overpayment of additional VA compensation benefits for a dependent spouse in the amount of $9,069.02 was raised in November 2017 correspondence from the Veteran and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. In a November 2007 rating decision, the VA Regional Office (RO) granted service connection for various disabilities rated at 100 percent from September 2007. 2. In November 2007, the Veteran was notified that he was receiving additional compensation benefits for his dependent spouse E.; he was furnished a VA Form 21-8764; and he was subsequently furnished that form on at least two more occasions. 3. In September 2017, the Veteran reported that he and E. divorced in April 2013, and that the Veteran married J. in February 2014; he subsequently submitted additional supporting documentation. 4. The RO retroactively removed E. from the Veteran's award of compensation benefits from May 1, 2013 and added J. effective September 29, 2017. 5. The Veteran was informed that a debt totaling $9,069.02 was created. CONCLUSIONS OF LAW 1. The Veteran's spouse, E., was properly removed from his VA compensation award effective May 1, 2013. 38 U.S.C. §§ 5110, 5111, 5112; 38 C.F.R. §§ 3.401, 3.501. 2. The Veteran's spouse, J. may not be added to his VA compensation award earlier than September 29, 2017. 38 U.S.C. §§ 5110, 5111, 5112; 38 C.F.R. §§ 3.401, 3.501. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a November 2007 rating decision, the RO granted service connection for disabilities cumulatively rated at 100 percent from September 2007. 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 November 2007, the Veteran was notified that he was receiving additional compensation benefits for his dependent spouse, E.; 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 2009 and August 2011, the Veteran was again told that he was receiving benefits for his spouse and was also again provided a VA Form 21-8764. In September 2017, according to a Report of Contact, the Veteran called VA to report a divorce from the Veteran's spouse E. which occurred in April 2013. The Veteran also reported that he married J. in February 2014. The Veteran indicated that he had dependency changes in the Defense Enrollment Eligibility Reporting System (DEERS), but the changes were not recorded. It was noted that the Veteran was informed of dependency changes and the need to file in a timely manner. He was electronically mailed VA Forms 21-686C and 21-0538 and informed to fill these out and submit them as soon as possible. The Veteran then submitted the requested dependency information confirming that he divorced E. in April 2013 and married J. in February 2014. In October 2017, the RO retroactively removed E. from the Veteran's effective May 1, 2013 and added J. effective September 29, 2017. The Veteran was informed that a debt totaling $9,069.02 was created. 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 E. was effective May 1, 2013, the first day of the month following their April 2013 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 2017, the Veteran informed the RO of his marriage to J. The RO added J. effective September 29, 2017. 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. It is unclear from the record whether the Veteran contends that he updated the DEERS system contemporaneously to his marriage to J. in 2013; however, even accepting that he did so, he did not submit the necessary documentary evidence until 2017. As such, the RO has properly assigned the September 2017 date as the latest date. There is no basis to add J. from an earlier date. The Veteran maintains that he should not be required to repay the debt for the period of time from when he was remarried (to J.) since he had added a dependent; the Board notes that the Veteran's arguments pertain to his claim for waiver rather than the creation of the debt. Specifically, his argument regarding his general entitlement to continued benefits for a dependent spouse from the date he married J. pertains to the element of whether recovery would defeat the purpose of the benefits (an element of equity and good conscience) 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 times other than the period of time between his divorce from E. and marriage to J. The Board has referred that matter to the AOJ. S. L. Kennedy 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.