Citation Nr: 22032550 Decision Date: 06/03/22 Archive Date: 06/03/22 DOCKET NO. 18-50 665 DATE: June 3, 2022 ORDER The overpayment of Department of Veterans Affairs (VA) additional compensation benefits in the amount of $15,477.53 was not properly created and the appeal is granted. FINDINGS OF FACT 1. In April 2004, the Veteran and his spouse, S., divorced and the Veteran notified VA and furnished his divorce decree, but no action was taken to remove her from his award. 2. In September 2013, the Veteran notified VA of his marriage to C. that year; he again notified VA in 2014. 3. In July 2017, the RO removed S. from the Veteran's award of VA disability compensation benefits effective May 1, 2004, and added C. effective May 1, 2013; the removal of S. resulted in the creation of an overpayment in the amount of $15,477.53. 4. The Veteran neither had knowledge of, nor should have been aware of, the erroneous award of benefits for his spouse after their divorce and the error in the spouse not being removed was not due to the Veteran's actions or failure to act. CONCLUSION OF LAW The overpayment of VA additional compensation benefits in the amount of $15,477.53 was not 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 has been in receipt of VA compensation benefits at the 80 percent or more rate from February 1996. The Veteran and S. married in July 1997. 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. The Veteran was awarded additional VA compensation benefits for a spouse, S., as well as dependent children. He was advised to notify VA of any changes in his dependency status and was provided a VA Form 21-8764 which reiterated that additional benefits were included for his dependents and he should notify the Regional Office (RO) of dependency changes. In April 2004, the Veteran and his spouse, S., divorced. The Veteran provided the RO with a copy of his divorce certificate within several months. This correspondence is of record. However, thereafter no action was taken to remove her from his award. Over the next decade, the Veteran was provided one letter in August 2010 that noted that he was being paid additional benefits for S. as a spouse. Many years later, in August 2013, the Veteran was requested to verify his dependents via a VA Form 21-0538. The Veteran promptly completed this form and reported that he was married to C. He submitted additional marital documentation. The Veteran also telephoned the RO regarding C.'s status as his spouse. The Veteran apparently sought to obtain educational assistance benefits for C. and through this process, it was noted within VA's system that the Veteran was no longer married to S. He married C. in April 2013, and, as indicated, VA received contemporaneous notice of that marriage. The RO did not take any action to remove S. from or add C. to the Veteran's compensation award. Several years later, in July 2017, the RO retroactively removed S. from the Veteran's compensation award effective May 1, 2004, and added C. effective May 1, 2013. The retroactive removal of S. resulted in the creation of a debt totaling $15,477.53. The Veteran maintains that the error in this case was on VA's part as he notified VA of his divorce in a timely manner. He said that he did not realize that S. was on his award because he also had child and compensation payment changes. In October 2020, the Veteran testified at a Board of Veterans' Appeals (Board) hearing. He explained that when he and S. divorced, he had five children who had been on his award. Over the course of the next 6-8 years, when a dependent would turn 18 years old, the dependent would automatically be dropped off of his dependency status and then his pay would change. Thereafter, the children would switch over to educational assistance benefits under Chapter 35. It was apparent that he did not notice the single time S. was mentioned in a VA letter. The Veteran was credible in his testimony. 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 Veteran neither had knowledge of, nor should have been aware of, the erroneous award. Further, such error contemplates that neither the Veteran'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 notified VA promptly of his divorce, but no action was taken to remove S. The record reflects one instance when he was subsequently notified 6 years later that S. was on his award in 2010. He then notified VA in 2013 of his marriage to C. that year. No action was then taken for 4 more years. The Veteran had several dependent children and his pay changed due to dependency changes. It is reasonable that he thought VA was aware of his current dependency status and was paying him accordingly. The Board recognizes that he was told that he was receiving benefits for S. on one occasion, but the Board finds credible the Veteran's report that he thought he was being paid accurately because he had told VA promptly of his divorce. It is clear that he was timely with his report of dependency changes and notified VA of those changes. These actions on his part lend credence to a conclusion that he neither knew nor should have known that he was not being paid accurately. He clearly was not concealing his marital status or changes thereto to include with regard to his Chapter 35 benefits. Moreover, the RO repeatedly failed to take appropriate action in 2004, again in 2013, and again once more in 2014. The action by VA to remove S. was taken about 13 years after the Veteran notified the RO of their divorce. With the paucity in the record of notices to the Veteran, the Board finds that the Veteran neither had knowledge of nor should have been aware of the erroneous award of benefits for his spouse S. after their divorce and the error in the spouse not being removed was not due to the Veteran's actions or failure to act. Rather, it was solely due to the RO's repeated failure to act 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. Bethany L. Buck 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.