Citation Nr: 21026151 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 18-40 261 DATE: April 29, 2021 ORDER The overpayment of Department of Veterans Affairs (VA) apportioned benefits in the amount of $4,340 was not properly created and the appeal is granted. FINDINGS OF FACT 1. In a September 1999 Apportionment Decision, the Appellant was granted a monthly apportionment of the Veteran’s benefits in the monthly amount of $50. 2. In December 2008, the Appellant contacted VA to inform VA that she and the Veteran divorced that month. 3. In February 2009, the Appellant submitted a copy of her divorce papers, as requested by VA; she requested that VA terminate the apportionment. 4. In December 2014, the Veteran reported to VA that he was not married in a dependency report document. 5. In May 2017, the Regional Office (RO) terminated the Appellant’s $50 monthly apportionment award which resulted in the creation of an overpayment of $4,340. 6. The Appellant neither had knowledge of nor should have been aware of that the continuous award of $50 monthly was erroneous and the error in the apportionment not being terminated was not due to the Appellant’s actions or failure to act. CONCLUSION OF LAW The overpayment of VA apportioned benefits in the amount of $4,340 was not properly created. 38 U.S.C. §§ 5112 5307; 38 C.F.R. § 3.500. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board of Veterans’ Appeals (Board) notes at outset that the Appellant previously requested a waiver of the recovery of the overpayment at issue in this case which was waived. Nonetheless, the matter of the proper creation of the debt remains on appeal and is before the Board at this time. In a September 1999 Apportionment Decision, the Appellant was granted a monthly apportionment of the Veteran’s benefits in the monthly amount of $50. The record reflects that notice of the apportionment was sent to the Veteran, but there is no record of the notice to the Appellant. The Court of Appeals for Veterans Claims (Court) has determined VA apportionment law does not permit an apportionment to a former spouse. Marrero v. Gober, 14 Vet. App. 80 (2000). In Marrero, the Court noted 38 U.S.C. § 5307 and its implementing regulations only permit apportionments to dependents of a beneficiary. 14 Vet. App. at 82. Thus, the Appellant was only entitled to apportioned benefits while she was married to the Veteran. In December 2008, the Appellant contacted VA to inform VA that she and the Veteran divorced that month. She was requested to submit the divorce papers which she did in February 2009. She also requested that VA terminate the apportionment. Thus, it appears that the Appellant believed that she was not entitled to a VA apportionment upon her divorce from the Veteran. However, the RO then did not take any action to terminate the apportionment. In written correspondence as well as at a personal hearing before the Board, the Appellant as well as N.E.R., the Director of her local Division of Veterans’ Services, detailed her repeated contacts with the RO after the divorce regarding the status of the apportionment. Also, contemporaneously, there were custody matters being resolved regarding her children with the Veteran. It has been asserted that she was told by RO personnel that she was in fact entitled to receive the apportionment. It is reasonable given the timeline to afford credibility to this assertion as the RO might have been referring to an apportionment for the children and this represented a miscommunication concerning continued entitlement. Regardless, the Board finds credible that the Appellant was told that she was entitled to the benefit and that the RO took no action whatsoever to terminate the apportionment even though there were repeated contacts from the Appellant and all necessary divorce documentation was timely submitted by her. As such, it is reasonable that she believed that she was entitled to continue to receive the apportionment. In December 2014, the Veteran also reported to VA that he was not married in a dependency report document. Again, the RO did not terminate the apportionment. In May 2017, the R finally terminated (retroactively) the Appellant’s $50 monthly apportionment award which resulted in the creation of an overpayment of $4,340. The Board has considered whether there was sole administrative error in the payment of the additional benefits for a spouse due to the significant 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 Appellant notified VA promptly of the divorce. Thereafter, the Appellant continued to contact the RO about the status of the apportionment and was apparently told that she was entitled to continue to receive the apportionment. Also, the record is entirely devoid of any further notifications regarding the apportionment to the Appellant. It is reasonable that she thought she was properly being paid based on the fact that she informed the RO, she repeatedly contacted the RO, she continued to be paid, and she was apparently told that she was entitled to the apportionment. The RO was clearly aware of her current divorce status and was paying her with that knowledge accordingly. In addition, the Veteran also later reported his divorce status with no change to the apportionment. The RO again failed to act. Thus, the Board finds that the Appellant neither had knowledge of nor should have been aware of that the continuous award of $50 monthly was erroneous and the error in the apportionment not being terminated was not due to the Appellant’s actions or failure to act. Rather, it was solely due to the RO’s repeated failure to act for nearly a decade 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. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals J. Connolly, Attorney for the Board Department of Veterans Affairs 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.