Citation Nr: 21076249 Decision Date: 12/23/21 Archive Date: 12/22/21 DOCKET NO. 19-18 860A DATE: December 23, 2021 ORDER The overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $6,822.98 was not properly created and the appeal is granted. FINDINGS OF FACT 1. The Veteran and T. married in June 2001; in July 2001, the Regional Office (RO) provided the Veteran information he should promptly inform that office of VA of any change in the status of his dependents. 2. In April 2013, the Veteran and his spouse, T., divorced. 3. In April 2013, the Veteran notified VA promptly of his divorce and furnished his divorce papers, but no action was taken to remove her from his award. 4. In September 2016, the RO removed T. from the Veteran's award of VA disability compensation benefits effective May 1, 2013, the first day of the month following their divorce; this action of the RO resulted in the creation of an overpayment in the amount of $6,822.98. 6. The Veteran neither had adequate knowledge of nor should have been aware of the erroneous award of benefits for his spouse after their divorce and the error in T. 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 $6,822.98 was not properly created. 38 U.S.C. §§ 5110, 5111, 5112; 38 C.F.R. §§ 3.401, 3.501. REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. At this juncture, the Board of Veterans' Appeals (Board) notes that the Veteran is service-connected for multiple disabilities, including schizophrenia which is rated as 100 percent disabling and has caused periods of active psychosis. The Veteran has not been deemed incompetent, but the Board is mindful of his disability and the assigned rating. The Veteran and T. married in June 2001. In July 2001, the RO provided the Veteran information he should promptly inform that office of VA of any change in the status of his dependents. In April 2013, the Veteran and his spouse, T., divorced. In April 2013, the Veteran notified VA promptly of his divorce and furnished his divorce papers, but no action was taken to remove her from his award. Simultaneously, T. sought an apportionment of the Veteran's benefits for their son, I., and that request was processed. Eventually, in December 2014, the RO awarded the apportionment and notified the Veteran of the award, indicating that it was on behalf of T. and their son. The reason the apportionment was also awarded for T. is because the RO had not removed her from the Veteran's compensation award. Then, two weeks later, the Veteran was notified of an overpayment of $706.67, but the basis of this overpayment was not indicated. A year later, in December 2015, the RO requested that the Veteran complete a dependency form to verify his dependents. The Veteran did not immediately reply, so the RO indicated that the RO proposed to reduce the Veteran's benefits because he had not replied. The Veteran then replied with a VA Form 686c, Declaration of Status of Dependents, in which he indicated that he was divorced, and that the RO had a copy of his divorce decree on file. In August 2016, the RO indicated that no changes would be made to the Veteran's benefits. However, in September 2016, he was informed that T. was being retroactively removed from his compensation benefits effective May 1, 2013, the first day of the month after their divorce. That action resulted in the creation of the overpayment at issue totaling $6,822.98. The Veteran maintains that the error in this case was on VA's part as he notified VA of his divorce. 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 his 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 his divorce. The record then shows that the RO was in the process of determining if an apportionment was warranted. It is reasonable to find that the Veteran believed that the RO was taking appropriate action with regard to his benefits and that it was not entirely clear that T. had not been removed since the request for an apportionment was from her, but on their son's behalf. In addition, after the apportionment was awarded, a small overpayment was generated, but there was no explanation for this, further confusing the matter of the Veteran's payments. In addition, as noted, the nature of the Veteran's payments were confusing and the Veteran is receiving a 100 percent rating based on psychiatric impairment. The record demonstrates a lack of clarity. It is clear, however, that the Veteran informed VA immediately of his divorce. Thus, the Board finds that the Veteran neither had adequate knowledge of nor should have been aware of the erroneous award of benefits for his 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 repeated failure to act and unclear actions which in this case constitutes sole VA administrative error. Accordingly, the Board finds that under the circumstances of this case, the appeal must be granted. T. Berry Acting 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.