Citation Nr: 21015482 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-53 062 DATE: March 17, 2021 ORDER Entitlement to an effective date earlier than April 1, 2016, for the establishment of a dependent spouse for the payment of additional benefits based on dependency status is denied. The overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $7,559.55 was properly created; the appeal is denied. REFERRED In July 2016, the Veteran filed a Notice of Disagreement (NOD) with the March 2016 administrative decision. The First Demand Letter was issued in April 2016. In the NOD, the Veteran indicated that he is providing care for his spouse’s mother, that he is physically unable to work, that his family is dependent on his benefits to make ends meet, and that VA’s’ actions have created a “financial hardship situation” and “will continue to place my wife and I in harsher and harsher financial trouble.” The Board finds that the RO should consider whether these statements are timely claims for a waiver of the overpayment. Accordingly, this matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. In a January 2000 letter, the Regional Office (RO) informed the Veteran that he had been awarded additional benefits for his spouse, D.G., and he was informed that he should promptly inform VA of any change in the status of his dependent; he was provided a VA Form 21-8764 which reiterated that additional benefits were included for his spouse and that failure to notify the RO in a prompt fashion of a dependency change would result in an overpayment. 2. In January 2010, the Veteran divorced D.G. 3. In February 2010, the Veteran married A.G. 4. The RO was initially notified of the Veteran’s divorce from D.G. and marriage to A.G. in March 2016. 5. The RO removed D.G. from the Veteran’s award of VA disability compensation benefits effective February 1, 2010; the actions of the RO resulted in the creation of an overpayment. 6. In November 2016, the RO added A.G. to the Veteran’s’ award effective April 1, 2016. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than April 1, 2016 for recognition of the Veteran’s spouse, A.G., as a dependent for the payment of additional benefits based on dependency status are not met. 38 U.S.C. §§ 1115, 5107, 5110 (2012); 38 C.F.R. §§ 3.4, 3.102, 3.204, 3.209, 3.401. 2. The overpayment of VA compensation benefits in the amount of $7,559.55 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 The Veteran had active service from August 1982 to November 1999. This case is before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 administrative decision that removed D.G. as a dependent spouse effective February 1, 2010. In November 2016 the RO recognized his current spouse, A.G., as a dependent for purpose of additional benefits based on dependency status, effective April 1, 2016. The Veteran contends that the overpayment debt is not valid because he was married for all but a few weeks of the debt period. See January 2021 Hearing Transcript. Essentially, the Veteran contends that he is entitled to an earlier effective date of March 1, 2010 to establish dependent status for his current spouse, A.G., for VA purposes. 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 a January 2000 letter, the RO informed the Veteran that he had been awarded additional benefits for his spouse, D.G., and he was informed that he should promptly inform that office of VA of any change in the status of his dependent and that a failure to do so might result in an overpayment which must be repaid. He was provided a VA Form 21-8764 which reiterated that additional benefits were included for his spouse and that failure to notify the RO in a prompt fashion of a dependency change would result in an overpayment. In March 2016, a VA Form 21-0538, Mandatory Status of Dependents, was received from the Veteran which reported that he was divorced from D.G. in January 2010 and that he was married to A.G. on February [REDACTED], 2010. In a March 2016 letter, the RO informed the Veteran that D.G. was removed as his dependent effective February 1, 2010, the first day of the first month after the divorce was final. The RO deferred adding A.G. as a dependent spouse pending receipt of required information from the Veteran. In a November 2016 letter, the RO notified the Veteran that A.G. was added as the dependent spouse effective April 1, 2016 because the RO received the VA Form 21-0538, Mandatory Status of Dependents, in March 2016. See 38 U.S.C. §§ 5111, 5112; 38 C.F.R. § 3.401. In sum, the RO informed the Veteran that he should promptly inform the RO of any change in the status of his dependents. He was provided a VA Form 21-8764 which reiterated that additional benefits were included for his spouse and that failure to notify the RO in a prompt fashion of a dependency change would result in an overpayment that would need to be repaid. The law is clear that the Veteran’s right to receive additional disability compensation with respect to D.G. ceased after the divorce was finalized. The RO added A.G. effective the first day of the month following notice of the Veteran’s marriage to her. 38 C.F.R. § 3.401 (b) provides 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 v. West, 13 Vet. App. 553, 556 (2000). Under applicable criteria, the effective date of an award of additional compensation for a dependent is the latest of the following dates: (1) The date of claim. This term means the following, listed in their order of applicability: (i) the date of a veteran’s marriage, or birth/adoption of his or her child, if the evidence of the event is received within one year of the event; otherwise, (ii) the date notice is received of the dependent’s existence, if evidence is received within one year of the VA request; or, (2) The date the dependency arises; or, (3) The effective date of the qualifying disability rating provided evidence of dependency is received within one year of notification of such rating action; or, (4) The date of commencement of a veteran’s award. 38 U.S.C. § 5110 (f), (n); 38 C.F.R. § 3.401 (b). Although the Veteran and A.G. married in February 2010, he did not notify VA within one year. (Continued on the next page)   The Board has considered the arguments set forth by the Veteran. The Veteran asserts that he submitted documentation to remove his spouse in DEERS, and that he did not receive notice of the overpayment debt because he was away from home caring for his spouse’s mother. The Board notes that DEERS is part of the Department of Defense, and that such notification is separate and distinct from notifying VA. Therefore, updating beneficiaries in DEERS is not a notification to VA. The Board emphasizes that regulations are binding on all who seek to come within their sphere, “regardless of actual knowledge of what is in the regulations or of the hardship resulting from innocent ignorance.” See Morris v. Derwinski, 1 Vet. App. 260 (1990), (citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947)). Further, the Board notes that VA notified the Veteran in September 2010 and January 2013, after his marriage to A.G., that his former spouse D.G. was still listed as his dependent spouse for the purpose of determining VA compensation. Therefore, the Veteran should have known that his VA records were not updated to reflect his marriage to A.G. Likewise, there is a “presumption of regularity” under which it is presumed that government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992); see also United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). There is no record of receipt of communication from the Veteran regarding his divorce from D.G. and marriage to A.G. prior to March 2016. Regarding the Veteran’s assertion that he did not receive VA notification of the overpayment debt, the presumption of regularity also applies to RO mailing procedures. Mindenhall v. Brown, 7 Vet. App. 271 (1994). There is no indication that VA failed to discharge its duty regarding mailing the proper notifications to the Veteran. As such, the Veteran has not provided evidence which clearly rebuts this presumption. As the Veteran did not notify the RO of his divorce and subsequent remarriage until March 2016, and notification of his marriage to A.G. was not received within a year of the marriage, the actions of the RO in adjusting the Veteran’s dependency status changes were proper and the debt created is valid. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Bynum, Associate 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.