Citation Nr: 21028358 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-51 902 DATE: May 11, 2021 ORDER The overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $759.00 was properly created; the appeal is denied. FINDINGS OF FACT 1. In June 2010, the Veteran filed a claim for benefits and identified his spouse A.T. for the purpose of establishing entitlement to additional dependency benefits. 2. In a June 2011 letter, the Regional Office (RO) provided the Veteran with VA Form 21-8764 which informed him of the requirement to notify the RO in a prompt fashion of a dependency change. 3. In June 2013, the Veteran and A.T. divorced. 4. The Veteran and S.T. married in October 2015. 5. The Veteran initially notified the RO that his marital status had changed in December 2015. 6. The RO removed A.T. from the Veteran's award of VA disability compensation benefits effective August 27, 2014, the date the Veteran became eligible for additional dependency benefits, and added S.T. to the award effective October 13, 2015; the actions of the RO resulted in the creation of an overpayment. CONCLUSION OF LAW The overpayment of VA compensation benefits in the amount of $759.00 was properly created. 38 U.S.C. §§ 5110, 5111, 5112; 38 C.F.R. §§ 3.401, 3.501 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from April 1984 to August 1984, from August 2002 to July 2003 and from June 2007 to July 2008. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2015 administrative decision that removed A.T. from the Veteran's award of VA disability compensation benefits effective August 27, 2014, the date the Veteran became eligible for additional dependency benefits, and added S.T. to the award effective October 13, 2015 Laws and Regulations 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 meets the criteria for additional dependency compensation from August 27, 2014, the effective date of a 40 percent disability rating. The Veteran filed an original claim for entitlement to VA disability compensation in June 2010. The Veteran reported dependents to include his spouse, A.T. The Veteran was awarded service connection in June 2011 and was assigned a disability rating of 10 percent. He was provided with VA Form 21-8764 which informed him of the requirement to notify the RO in a prompt fashion of a dependency change. The Veteran filed an original claim for entitlement to service connection for multiple conditions in August 2015. The Veteran was instructed to submit VA Form 21-686c, Application Request to Add And/Or Remove Dependents. The Veteran did not report any changes in the status of his dependents. In a November 2015 VA letter, the RO informed the Veteran that he had been awarded additional benefits for his spouse A.T. and he was informed that he should promptly inform that office of VA of any change in the status of his dependent. In December 2015, the Veteran submitted VA Form 21-686c. The Veteran reported his divorce from A.T. in June 2013 and marriage to S.T. in October 2015. The Veteran provided copies of his divorce decree and marriage license. In a June 2016 letter, the Veteran was advised that the RO retroactively removed A.T. as the Veteran's spouse from his award of VA compensation benefits effective August 27, 2014, the day the Veteran became eligible for additional dependency benefits and since the Veteran had also remarried S.T., the RO added her as the Veteran's spouse to his award of VA compensation benefits from November 1, 2015, the first day of the month following their marriage. 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). An effective date of the award of any benefit or any increase therein by reason of marriage shall be the date of such event if proof of such event is received by the Secretary within one year from the date of the marriage, birth, or adoption. 38 U.S.C. § 5110 (n); 38 C.F.R. § 3.401 (b). Otherwise, the effective date is the date notice is received of the dependent's existence, if evidence is received within one year of the Department of Veterans Affairs request. 38 C.F.R. § 3.401 (b). The payment of monetary benefits based on an award or an increased award of compensation, dependency and indemnity compensation, or pension, may not be made to an individual for any period before the first day of the calendar month following the month in which the award or increased award became effective. The term "award or increased award" means an original or reopened award or an award that is increased because of an added dependent, increase in disability or disability rating, or reduction in income. 38 U.S.C. § 5111 (a), (d). The retroactive adjustments to the Veteran's VA compensation benefits resulted in an overpayment debt of $759.00 which was the amount the Veteran was paid for additional VA benefits for a spouse when he was divorced and had no spouse. In sum, in June 2011 the Veteran was provided a VA Form 21-8764 which informed him 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 Veteran did not notify VA of any dependency changes until December 2015. The Veteran was instructed to inform VA of the status of his dependents in August 2015; however, there is no documentary evidence in the record of any notification of a change in dependency status prior to December 2015. The Board notes that there is a presumption of regularity that applies to official acts, and "in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)); see also Thompson v. Brown, 8 Vet. App. 169, 177-178 (1995) (applying the presumption of regularity to notice of a Board decision). Therefore, the presumption of regularity applies, and the Board can only conclude that the RO did not receive any information regarding changes in the Veteran's marital status prior to December 2015. The Veteran asserts that the overpayment was created due to VA administrative error. Specifically, the Veteran contends that he was not required to report his divorce from A.T. because at the time of the divorce he was not receiving additional dependency benefits for a spouse, and that VA incorrectly used a previously submitted dependency form without validating dependency status in the November 2015 award. Accordingly, 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 reported his spouse, A.T., as a dependent in June 2010. The Veteran was assigned a 10 percent disability rating. It is reasonable to assume that when the Veteran filed a new claim for benefits in August 2015, he did so with the expectation that he would receive a higher combined disability rating, and that an award of such benefits would result in entitlement to additional dependency benefits. The Veteran was instructed to report his current dependent status in August 2015 but did not do so. Thus, the Veteran should have been aware that he would erroneously receive benefits for a spouse if assigned a disability rating of 30 percent or more. The Veteran was, in fact, awarded a combined disability rating of 40 percent in November 2015, effective in August 2014. The Veteran's actions in not notifying VA of the change in dependency status contributed to the erroneous award. (Continued on the next page) In sum, for the period of time between the date the Veteran met the criteria for additional dependency benefits and his marriage to S.T., he was not married and was not entitled to any benefits for a spouse. The RO terminated the Veteran's additional benefits for a spouse for that period. This action was proper. The RO did not resume additional benefits for a spouse until the Veteran had remarried. As the Veteran notified VA of his marriage to S.T. within a year of the marriage, he was entitled to additional dependency benefits for S.T. from the date of the marriage. The law is clear that the Veteran's right to receive additional disability compensation with respect to A.T. ceased after their divorce. The Veteran was entitled to receive benefits for his new spouse from the date of their marriage. as the Veteran furnished that information to VA in December 2015. Thus, the Board finds that the overpayment in this case was properly created. To the extent that the Veteran feels this is unfair, that argument pertains to a claim for a waiver of the recovery of the debt which is not before the Board at this time. James A. DeFrank Acting 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.