Citation Nr: 21032115 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 19-14 621 DATE: May 25, 2021 ORDER The overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $15,207.55 was properly created; the appeal is denied REFERRED The appellant was notified of the debt at issue in this appeal by the VA Debt Management Center (DMC) in June 2018. He was notified of his right to request a waiver at that time. The Veteran then filed a VA Form 5655 Financial Status Report (FSR) requesting a waiver in July 2018. The record shows the Committee on Waivers and Compromises (COWC) is awaiting a decision on the validity of the debt prior to making a decision on the waiver matter, which is appropriate as questions related to waiver must wait until after the matter of the validity of the debt is adjudicated. Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991) ("when a Veteran raises the validity of the debt as part of a waiver application... it is arbitrary and capricious and an abuse of discretion to adjudicate the waiver application without first deciding a veteran's challenge to the lawfulness of the debt asserted against him or her"); VAOPGCPREC 6-98 (July 24, 1998) (holding that when a veteran challenges the validity of the debt and seeks waiver of the debt, the [Regional Office] must first fully review the debt's validity and, if the office believes the debt to be valid, prepare a written decision fully justifying the validity of the debt before referring the waiver request to the Committee on Waivers and Compromises (COWC)). Thus, now that the matter as to validity in this case has been adjudicated, the RO should now refer the matter to the COWC for action on the waiver question. FINDINGS OF FACT 1. In a September 2002 letter, the Regional Office (RO) informed the Veteran that he was being paid additional benefits for his spouse, J.D.B. (later known by her married name as J.D.M.); he was informed that he should promptly inform VA of any change in his marital status; and 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 November 2004, the Veteran and J.D.M. divorced, but the Veteran did not notify VA until May 2018. 3. The Veteran was married to S.P. from April 2011 to August 2012, but the Veteran did not notify VA until May 2018. 4. The Veteran and J.D.M. remarried in September 2014, but the Veteran did not notify VA until May 2018. 5. The RO removed J.D.M. from the Veteran's award of VA disability compensation benefits effective December 1, 2004, and added her back to his award effective June 1, 2018; 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 $15,207.55 was properly created. 38 U.S.C. §§5110, 5111, 5112; 38 C.F.R. §§ 3.401, 3.501. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Army from July 1964 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) from a June 2018 RO decision to remove the Veteran's spouse, J.D.M., from his award effective December 1, 2004, due to their divorce on November 24, 2004, and to add her back after their remarriage, effective June 1, 2018. This action resulted in a $15,207.55 overpayment debt, which the Veteran was notified of by a letter from the DMC in June 2018. The Veteran has challenged the validity of this debt. 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 October 2001, a VA Form 21-686c, Declaration of Status of Dependents, was received from the Veteran in which he reported that he married J.D.B. in September 1998. Subsequent communication from VA in September 2002 shows he was being paid as a Veteran with one dependent, his spouse, and that he should notify VA right away if there was any change in his marital status. 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 November 2017, the RO requested updated dependency information from the Veteran. When no response was received, the RO again communicated with the Veteran in April 2018. In May 2018, the Veteran submitted an updated VA Form 21-686c, which showed he had divorced J.D.B. on November 24, 2004; married S.P. on April 5, 2011; divorced S.P. on August 14, 2012; and then remarried J.D.B. (who was now referred to as J.D.M.) on September 12, 2014. In the June 2018 decision letter on appeal, the Veteran was advised that the RO retroactively removed J.D.M. as the Veteran's spouse from his award of VA compensation benefits effective December 1, 2004, the first day of the month following their November 24, 2004 divorce and since the Veteran had also remarried J.D.M, the RO added her as the Veteran's spouse to his award of VA compensation benefits effective June 1, 2018, the first day of the month following VA's receipt of their remarriage information. No additional compensation was added for the period of time the Veteran was married to S.P., because the Veteran had not notified VA of that marriage within one year of the 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). In this case, the retroactive adjustments to the Veteran's VA compensation benefits resulted in an overpayment debt of $15,207.55, which was the amount the Veteran was paid additional VA benefits for a spouse when he was divorced and had no spouse (or was married to S.P., but had not notified VA of the marriage, or had remarried J.D.M, but had not notified VA of that re-marriage). In sum, the September 2002 letter from the RO informed the Veteran that he was being paid an additional benefit for his spouse and that he should promptly inform the RO of any change in his marital status. 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 Veteran did not notify VA of any dependency changes until May 2018. It was not until that time that he notified VA of his November 2004 divorce, or of his marriage to S.P. between April 2011 and August 2012. The law is clear that the Veteran's right to receive additional disability compensation with respect to J.D.M. ceased after their November 2004 divorce. The law is also clear that the Veteran would have had to notify VA of his marriage to S.P. within one year to have received additional benefits for her. The Veteran's entitlement to receive benefits for his later remarriage to J.D.M. did not arise until they were married, and he furnished that information to VA, which was not until May 2018. Thus, the Board finds that the action by the RO to adjust the Veteran's benefits was in accordance with the law and the overpayment in this case was properly created. To the extent that the Veteran feels recovery of this overpayment would cause him hardship, that argument pertains to a claim for a waiver of the recovery of the debt, which is not before the Board at this time. Again, the Veteran raised the matter of whether a waiver is warranted, and that matter can now be referred to the COWC for adjudication. MICHAEL E. KILCOYNE 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.