Citation Nr: 22013375 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 11-18 269 DATE: March 9, 2022 ORDER The Veteran's former spouse T. was properly removed from his Department of Veterans Affairs (VA) compensation award effective July 1, 1998, and the appeal is denied. The Veteran's current spouse, K., is added to the Veteran's VA compensation award as of June 1, 2002, and to that extent the appeal is granted. The portion of the current debt is the amount created from July 1, 1998, to May 31, 2002, is valid, but the portion of the debt created from June 1, 2002, to November 1, 2009, is invalid and, to that extent. the appeal is granted. FINDINGS OF FACT 1. A September 1993 rating decision established service connection for various disabilities with a combined service-connected rating of 30 percent. 2. In September 1993, the Veteran was notified that he was receiving additional compensation benefits for dependent spouse T. and he was furnished a VA Form 21-8764. 3. The Veteran and T. divorced in June 1998. 4. The Veteran and K. married in May 2002. 5. In April 2010, the Veteran submitted a VA Form 21-686c showing he had divorced T. in June 1998, and subsequently married K. in May 2002. 6. In April 2010, the RO then retroactively remove T. as a dependent effective July 1, 1998, and added K. to the Veteran's award effective May 1, 2010. 7. The retroactive adjustments in the Veteran's dependency status resulted in an overpayment of $7,935.80. 8. In July 2010, VA received a copy of a VA Form 10-10 EZ submitted to the Columbus VA Outpatient Clinic on October 22, 2009, which indicated K.'s information as his spouse; and the Agency of Original Jurisdiction accepted that document as a claim of dependency for K. 9. The RO adjusted the effective date to add K. to the award to October 22, 2009, payable from November 1, 2009, and that action reduced the debt to $5,576.80. 10. The Veteran credibly reported that he initially reported the date of marriage to K. to VA at the time of their marriage. 11. The debt created from July 1, 1998, following the divorce until the addition of K. as the Veteran's spouse effective June 1, 2002, is a valid debt. 12. The portion of the debt created from June 1, 2002, to October 22, 2009, payable from November 1, 2009, was not properly created. CONCLUSIONS OF LAW 1. The Veteran's spouse, T., was properly removed from his VA compensation award effective July 1, 1998. 38 U.S.C. §§ 5110, 5111, 5112; 38 C.F.R. §§ 3.401, 3.501. 2. The Veteran's spouse, K. is added to the Veteran's VA compensation award as of June 1, 2002. 38 U.S.C. §§ 5110, 5111, 5112; 38 C.F.R. §§ 3.401, 3.501. 3. The only valid portion of the current debt is the amount created from July 1, 1998, to May 31, 2002, and the portion of the debt created from June 1, 2002, to November 1, 2009, is invalid. 38 U.S.C. §§ 5110, 5111, 5112; 38 C.F.R. §§ 3.401, 3.501 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1983 to May 1992. On July 14, 1992, the Veteran filed an original application for compensation. On that application, he provided dependency information for a spouse, T., and two children. A September 1993 rating decision established service connection for disabilities with a 30 percent combined service-connected disability rating. 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 September 1993 letter, the Veteran was notified of the rating decision and that he was receiving additional compensation benefits for dependent spouse, T., and he was furnished a VA Form 21-8764. That form stated that the Veteran should notify VA immediately if there was any change in the number or status of his dependents. He was advised that the failure to do so would result in a creation of an overpayment of benefits. In March 2010, VA notified the Veteran of a proposal to reduce VA compensation benefits from August 1, 1992, because that was the last date of verification of dependents that VA had received. In April 2010, the Veteran responded and submitted a VA Form 21-686c showing he had divorced T. in June 1998, and subsequently married K. in May 2002. In April 2010, VA then retroactively remove T. as a dependent effective July 1, 1998, the first of the month following the divorce, and added K. to the Veteran's award effective May 1, 2010, the first day of the month following the receipt of the VA Form 21-686c by VA. These actions resulted in an overpayment of $7,935.80. 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 the divorce occurs. 38 U.S.C. § 5112 (b)(2); 38 C.F.R. § 3.501(d)(2). The Veteran's retroactive termination of payment for T. was effective July 1, 1998, the first of the month following the divorce. 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 that 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. 38 C.F.R. § 3.401(b). VA added K. to the Veteran's award effective May 1, 2010, the first day of the month following the receipt of the VA Form 21-686c by VA which was considered the date of claim. On July 22, 2010, the RO received a copy of a VA Form 10-10 EZ that the Veteran submitted to the Columbus VA Outpatient Clinic on October 22, 2009. On that form, the Veteran had provided K.'s information as his spouse. Thus, the RO accepted that document as a claim of dependency for K., so the RO added K. to the award as of October 22, 2009. The October 22, 2009, date was an earlier date of claim than the date of receipt of the VA Form 21-686c. A paid and due audit was then performed in March 2011. Based on that audit, a Memorandum was sent to the Finance Division requesting that action be taken to reduce the Veteran's debt by $2,359. That action was taken on March 7, 2011. The Veteran's original debt of $7,935.80, was therefore, reduced to $5,576.80, which is the current reduced amount of the debt at issue. In October 2012, the RO sent a request to the Columbus VA Outpatient Center requesting copies of the Veteran's registration documents from May 13, 2003, and May 27, 2003, visits. On November 6, 2012, the RO received a copy of the Veteran's patient inquiry information screens but not copies of the registration documents. However, the Columbus VA stated that no other documents were available. The Veteran does not dispute that he did not immediately inform the RO of his divorce from T. in 1998. However, the Veteran has presented written assertions and testimony at a February 2017 Board of Veterans' Appeals (Board) hearing that he informed VA multiple times since 2001 either of his divorce from T. or of his marriage to K. in May 2002. First, he has stated that he provided his marital and dependency status in 2001 when he purchased a home with a VA home loan guarantee. Second, he has stated that he registered for benefits at the VA Regional Medical Center in Columbus, Ohio, in 2002, and he documented his dependent status at that time. Third, he has stated that he updated his dependent information with the Columbus, Ohio VA office when he used their job assistance resources in 2002 and 2003. Fourth, he has stated that he registered for vocational rehabilitation in 2003. Fifth, he has stated he provided marital and dependency status when he filed at the Columbus, Ohio VA office for an increased rating for service-connected disabilities in February 2003. Sixth, he has stated that he provided his marital and dependency status when he filed for medical and insurance benefits at the Springfield, Ohio VA office in May 2006. The Board remanded this case to verify the Veteran's contentions with requests to the Agency of Original Jurisdiction (AOJ) to obtain the following records: (1) the Veteran's VA home loan guarantee records; (2) the Veteran's VA job placement records generated by the Columbus, Ohio Regional Office; (3) the Veteran's VA vocational rehabilitation records; (4) records from the Springfield, Ohio VA office related to the Veteran's application for medical and insurance benefits at the Springfield, Ohio VA office in May 2006. The RO attempted to obtain all of the requested records and undertook exhaustive efforts which did not produce any results. The vocational rehabilitation division indicated that there was no vocational rehabilitation file in existence for the Veteran. As for the other records, multiple attempts were made to obtain the records, five attempts in some cases, to no avail. The request letter for the job placement records was returned as the address was noted to be vacant with no forwarding address. The other records were not productive of any response. The Board finds that the action of the RO to retroactively terminate the Veteran's compensation benefits from the date of the Veteran's divorce from T. was proper. The law and regulations are clear that the Veteran's entitlement to benefits for a dependent spouse, ceased when they divorced. Even if the Veteran reported the divorce and no action was taken by VA, the payment amount did not change, so he should have been aware that he was still receiving benefits for a spouse when he was no longer married. Thus, there was no sole VA error. 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. 38 U.S.C. § 5112 (b)(10); 38 C.F.R. § 3.500(b)(2). 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 (2000). Sole administrative error may be found to occur only in cases where the Veteran neither had knowledge of, nor should have been aware of, the erroneous award. Sole administrative error contemplates that neither the Veteran's actions nor failure to act contributed to the erroneous award. 38 U.S.C. § 5112(b)(10); 38 C.F.R. § 3.500(b)(2). The Veteran clearly was not entitled to any benefits for a spouse for the time period from July 1, 1998, the first day of the month following divorce, and should have known that he was being paid the same amount before and after the divorce, which was incorrect, as his benefits included a dependent allowance. Turning to the effective date for adding K., the Board finds credible the Veteran's assertions that he timely informed VA of his marital status. He provided reliable details of his actions to report his marriage to K. at the Board hearing. The RO diligently attempted to obtain the underlying records. Written statements can be accepted as evidence of certain dependency events, such as marriage, when certain information is included such as the date and month of marriage and the full name of a spouse. 38 C.F.R. § 3.204; McColley v. West, 13 Vet. App. 553 (2000). Although the requested records documenting the information were not forthcoming from four different VA sources, three without any response, the Board finds that it is likely that the Veteran reported his marriage and furnished relevant information. Therefore, the two pertinent effective dates for the award are the date of claim and the date dependency arose. The Board accepts that both of those dates are from the initial possible date to add her, the first day of the month following their marriage, which was June 1, 2002. Accordingly, the Board finds that the overpayment created from the termination of additional compensation benefits for T. from July 1, 1998, until the addition of K. as the Veteran's spouse effective June 1, 2002, is a valid debt. However, the Board also finds that portion of the debt created from June 1, 2002, to October 22, 2009, payable from November 1, 2009, was not properly created. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Connolly 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.