Citation Nr: 21012145 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 18-15 141 DATE: March 3, 2021 ORDER The overpayment of Department of Veterans Affairs (VA) Dependency and Indemnity Compensation (DIC) in the amount of $100,706.37 was not properly created; the appeal is granted. FINDINGS OF FACT 1. In April 2008, the Veteran passed away, and in the same month the appellant was notified of his award of DIC benefits effective May 1, 2008,and instructed to notify VA right away if there is any change to his marital status or the status of his dependents. 2. The appellant remarried in September 2009. 3. The record shows the appellant, also a veteran, promptly notified VA of his remarriage in April 2010, but the RO took no action to adjust his DIC benefits despite taking action to add his new spouse to his own compensation award. 4. In May 2016, VA received a completed VA 21-0537 Marital Status Questionnaire again showing the Veteran’s remarriage on September 19, 2009. 5. The RO subsequently took action to stop the appellant’s VA DIC benefits effective September 1, 2009; this action resulted in the creation of an overpayment debt in the amount of $142,787.78. 6. The amount of the overpayment debt was later adjusted to $100,706.37 to account for the minor children’s continued eligibility for DIC benefits. 7. The appellant neither had knowledge of, nor should have been aware of the erroneous award of DIC benefits and the error that caused the debt was not due to the appellant’s actions or failure to act. CONCLUSION OF LAW The overpayment of VA compensation benefits in the amount of $100,706.37 was not properly created. 38 U.S.C. § 5112; 38 C.F.R. § 3.500. REASONS AND BASES FOR FINDINGS AND CONCLUSION The matter on appeal comes before the Board of Veterans Appeals (Board) from a July 2016 decision of the VA Pension Management Center, which stopped the appellant’s VA DIC benefits effective September 1, 2009 due to his remarriage. A retroactive debt was assessed. In July 2016, the appellant was notified by the VA Debt Management Center (DMC) of the $142,797.78 debt owed. In October 2016, the appellant submitted a notice of disagreement and indicated his belief that this debt is improper. The appellant reported that he had promptly notified VA of his remarriage and he thought the benefits he continued to receive were for his children. A November 2016 memorandum in the claims file shows the debt amount was adjusted to $100,706.37 in order to account for the continued eligibility for benefits for the minor children of the appellant and the Veteran. The appellant has since perfected an appeal as to the validity of this debt. In January 2021, the appellant provided hearing testimony before the undersigned Veterans Law Judge. A surviving spouse in receipt of DIC benefits is not entitled to receive DIC benefits if he or she remarries. See 38 C.F.R. §§ 3.50, 3.500(n), 3.502(d). There are multiple exceptions to this general rule, which are enumerated in 38 C.F.R. § 3.55(a)(1)-(10). See also 38 U.S.C. §§ 103(d), 1311(e). In this case, the appellant began receiving DIC benefits effective May 1, 2008, and he remarried in September 2009. He has remained married since that time. His original VA Form 21-534 claim form shows his birth date as July 7, 1970. Thus, he was age 38 when he remarried. None of the exceptions noted in 38 C.F.R. § 3.55(a) apply in this case. The effective date of discontinuance of DIC benefits by reason of marriage or remarriage shall be the last day of the month before such marriage or remarriage occurs. 38 U.S.C. § 5112(b)(1); 38 C.F.R. §§ 3.500(n)(1); 3.502(d). In this case, the December 2016 letter to the appellant shows the RO implemented the change to his DIC benefits effective September 1, 2009. Thus, the benefits were stopped the last day of the month prior to his September 2009 remarriage, which is in accordance with the law. The appellant, nonetheless, maintains that the error in this case was on VA’s part as he notified VA of his remarriage in a timely fashion and VA failed to act. The appellant has provided written statements and hearing testimony indicating that he knew he continued to receive payments from VA, but he assumed these payments were the benefits for his minor children. The Board has considered whether there was sole administrative error in the continued DIC payments for the appellant due to VA’s delay to take action. An administrative error resulting in an overpayment will not be classified as a VA administrative error or error in judgment if the error is “based on an act of commission or omission by the beneficiary, or with the beneficiary’s knowledge.” Dent v. McDonald, 27 Vet. App. 362, 380 (2015) (citing 38 U.S.C. § 5112 (b)(9); see 38 C.F.R. § 3.500 (b)(1); VAOPGREC 2-90 (March 20, 1990)). Sole administrative error connotes that the claimant neither had knowledge of nor should have been aware of the erroneous award. Further, neither the claimant’s actions nor his or her failure to act must have contributed to payment pursuant to the erroneous award. 38 U.S.C.A. § 5112 (b)(9), (10) (West 2014); 38 C.F.R. § 3.500 (b)(2) (2016); 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). Thus, a finding of sole administrative error requires not only error on the part of VA, but that the beneficiary is unaware that the payments are erroneous. In this case, VA has made findings admitting to this overpayment debt being the result of sole VA error. A November 2017 administrative decision within the file shows that the appellant notified VA of his remarriage in April 2010. The appellant, also a veteran, was noted to have these documents within his VA claims file. The Board finds no reason to delay action on this appeal in order to locate these documents, as VA has itself noted they are present in the appellant’s file. This November 2017 decision also indicates the appellant’s DIC benefits “were not adjusted in a timely manner.” The decision also noted that VA had taken action to adjust the appellant’s own service-connected award for his new dependent, but VA failed to act with regard to the DIC benefits. The decision went on to conclude that “since the overpayment of $100,706.37 is due to an administrative error, no overpayment is in order….The administrative error in processing was due solely to the actions of VA personnel….The incorrect payment was not due to any act of omission or commission on the part of [the appellant].” A subsequent email communication in the file shows the VA Pension and Fiduciary Service agreeing with the determination, but concluding that they had no ability to take action to eliminate the debt. Thus, the appellant notified VA promptly of his September 2009 remarriage and VA failed to act. The record is devoid of any further notifications between 2009 and 2016 to indicate the appellant was being paid DIC benefits for himself, rather than for his children. Given the appellant’s clear and prompt notification to VA that he had remarried and VA’s action to increase his service-connected benefits to add the new spouse as a dependent, it is reasonable that he thought VA was aware of his current marital status and also reasonable that he assumed he was being paid DIC payments for his children alone. The Board finds that the appellant neither had knowledge of, nor should have been aware of the erroneous award of benefits, and the error made in this case 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 VA administrative error. Again, these findings are consistent with findings made by VA in November 2017 and already noted within the record. Because it is undisputed that the debt was created due to sole VA administrative failure, and that the Veteran neither knew nor should have known of the erroneous award, this debt is not valid, and the Veteran’s appeal is granted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, Counsel 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.