Citation Nr: 22019918 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 19-08 663 DATE: April 3, 2022 ORDER The overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $14,292.90 was properly created; the appeal is denied. REFERRED The issue of waiver of the recovery of the overpayment of VA compensation benefits in the amount of $14,292.90 is referred to the RO for appropriate action. FINDINGS OF FACT 1. In an April 2010 letter, the RO notified the Veteran that he was receiving additional benefits for his dependent spouse and children. The Veteran was provided a VA Form 21-8764, which indicated that failure to notify the RO in a prompt fashion of a dependency change would result in an overpayment that must be repaid. 2. In January 2015, the Veteran initially notified the RO of his divorce from T.P. in March 2010. 3. In May 2015, the RO notified the Veteran that his former spouse, T.P., had been retroactively removed from his award effective April 1, 2010 (the first day of the month following the divorce). The Veteran was notified that his stepchildren, H.K. and A.S., had been retroactively removed from his award effective March 2, 2010 (the first day following the divorce) resulting in the creation of an overpayment of compensation benefits in the amount of $14,292.90. CONCLUSION OF LAW The overpayment of VA compensation benefits in the amount of $14,292.90 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 on active duty during Peacetime and the Gulf War era from September 1985 to December 1985 and from July 2004 to February 2006. These matter is on appeal from a May 2015 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran was scheduled for a Board hearing in February 2022. A review of the record shows that the Veteran indicated that he would report to the RO in person for the hearing. However, the Veteran did not attend the hearing and was deemed a no-show. To date the Veteran has not requested that the hearing be rescheduled. Therefore, his request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704 (d). The Board further notes that the Veteran has raised the issue of waiver of the recovery of the overpayment of VA compensation benefits in the amount of $14,292.90. Specifically, in the October 2015 Notice of Disagreement and the February 2019 substantive appeal, the Veteran asserted that repayment of overpayment debt would result in financial hardship. As such, the issue of entitlement to a waiver of the recovery of the overpayment of VA compensation benefits in the amount of $14,292.90 is referred to the RO for appropriate action. The overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $14,292.90 was properly created; the appeal is denied. The Veteran challenges the validity of the overpayment of VA compensation. He maintains that he did not receive the RO notification letters informing him that he was receiving additional compensation for his former spouse and stepchildren. See February 2019 VA Form 9. The Veteran also asserts that he is entitled to the additional compensation because he continued to support his stepchildren after his divorce. See October 2015 Notice of Disagreement. 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 and dependent children. In August 2009, the Veteran submitted a request to add his spouse, T.P., and his stepchildren, A.S. and H.K., to his VA compensation award. In an April 2010 letter, the RO notified the Veteran that T.P., A.S., and H.K. were added to his award effective August 3, 2009 and he was provided a VA Form 21-8764, which indicated that failure to notify the RO in a prompt fashion of a dependency change would result in an overpayment that must be repaid. In October 2014, the Veteran was again notified that he was receiving additional compensation for his spouse and children. The Veteran was provided with Form VA 21-0538, Status of Dependents Questionnaire, and was asked to return the completed form to show continued entitlement to additional compensation. In January 2015, a VA Form VA 21-0538, was received from the Veteran in which he reported a divorce from T.P. in March 2010. In a May 2015 letter, the Veteran was advised that the RO retroactively removed T.P. as his dependent spouse from his award of VA compensation benefits effective April 1, 2010, the first day of the month following their divorce. The Veteran was also informed that the RO retroactively removed A.S. and H.K. effective March 2, 2010, the day after his divorce from T.P. The retroactive adjustments to the Veteran's VA compensation benefits resulted in an overpayment debt of $14,292.90. While the Board acknowledges the Veteran's assertion that he continued to support his stepchildren financially after his divorce, the law is clear that the Veteran's right to receive additional compensation ceased after his divorce from T.P. Regarding the Veteran's assertion that he did not receive correspondence from VA informing him that he was receiving additional compensation after the divorce from T.P., the April 2010 letter was sent to the Veteran's address of record and was not returned as undeliverable. 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 notified the Veteran that he should promptly notify the RO of any change in dependency status; however, he did not do so prior to January 2015. The evidence also shows that VA's overpayment in the amount of $14,292.90 was not the result of sole VA administrative error. Sole administrative error entails no knowledge or fault on the part of the debtor. 38 U.S.C. § 5112 (b)(10); 38 C.F.R. § 3.500(b)(2). As noted, the evidence shows that since April 2010, the Veteran was aware that he was receiving additional benefits on account of his dependent spouse, T.P. and that it was his responsibility to promptly report any change in the status of his dependents to VA. The Board further notes that at the time the Veteran was informed of the additional compensation award in April 2010, he was already divorced from T.P. and therefore knew he was not entitled to additional compensation. Therefore, the Board finds that the Veteran knew or should have known that his compensation award should have been adjusted based on a change in his marital status in March 2010. Because the Veteran had knowledge of the erroneous award and his failure to promptly notify VA of the change of his marital status contributed to VA's payment of the erroneous award, the creation of the overpayment was not a result of sole VA administrative error. In sum, the Veteran was divorced from T.P. in March 2010 and he did not notify VA of the change in his marital status until January 2015. The RO terminated the Veteran's additional benefits for T.P. effective April 1, 2010, the first day of the month following the divorce effective April 1, 2010, the first day of the month following their divorce. The RO terminated the Veteran's additional benefits for A.S. and H.K. effective March 2, 2010, the day after his divorce from T.P. This action was proper. Accordingly, the Board finds the overpayment was properly created. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Bynum, 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.