Citation Nr: 23052688 Decision Date: 09/22/23 Archive Date: 09/22/23 DOCKET NO. 20-00 900 DATE: September 22, 2023 ORDER The overpayment of Department of Veterans Affairs (VA) compensation benefits in the calculated amount of $7,312.37, as a result of the removal of the Veteran's former spouse B. from his award as a dependent, effective April 2, 2012, was properly created. An effective date prior to March 1, 2016, for additional dependency compensation for the Veteran's current spouse, J. is denied. FINDINGS OF FACT 1. In a January 2008 rating decision, the VA Regional Office (RO) granted service connection for various disabilities with a combined rating of 40 percent effective September 38, 2006. 2. In January 2008, the Veteran was notified that he was receiving additional compensation benefits for his dependent spouse B.; he was notified of his responsibility to inform VA if the status of his dependents changed; and he was furnished a VA Form 21-8764. 3. The Veteran was subsequently reminded that his benefits included an additional amount for his spouse, B., to include letters sent to him in June 2012 and March 2013. 4. On February 10, 2016, VA received a VA From 21-0538 showing the Veteran married J. on December 12, 2012; subsequent information was submitted confirming he had divorced B. on April 2, 2012. 5. The RO retroactively removed B. from the Veteran's award of compensation benefits effective April 2, 2012, and added J. effective February 10, 2016. 6. In March 2018, the Veteran was informed that a debt totaling $7,312.37 was created as a result of the retroactive removal of B. from his award. CONCLUSIONS OF LAW 1. The overpayment of VA compensation benefits in the calculated amount of $7,312.37, as a result of the removal of the Veteran's former spouse B. from his award as a dependent, effective April 2, 2012, was properly created. 38 U.S.C. §§ 5110, 5111, 5112; 38 C.F.R. §§ 3.401, 3.501. 2. The criteria for an effective date prior to March 1, 2016, for additional dependency compensation for the Veteran's current spouse, J., have not been met. 38 U.S.C. §§ 5110, 5111, 5112; 38 C.F.R. §§ 3.401, 3.501. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from January 1987 to February 1989, and from October 2005 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) from a May 2018 decision of the RO, which was a response to the Veteran's March 2018 statement suggesting the date VA added his wife, J., to his award is incorrect, such that his debt should be adjusted. In May 2018, the RO found the date VA added J. to his award could not be earlier than February 10, 2016. The Veteran then filed a notice of disagreement (NOD) in July 2018, after which two statements of the case (SOC) were issued in November 2019. The first SOC addressed whether an earlier effective date is warranted for the addition of J. to the Veteran's award. The second SOC addressed the effective date for removal of the Veteran's first wife, B., from his award, which was the adjustment that led to the debt. The Veteran then filed his VA Form 9 in December 2019 and requested a hearing. The Veteran later provided hearing testimony at a Board virtual hearing in December 2022 before the undersigned Veterans Law Judge. A transcript of that hearing is in the Veteran's claims file. Matters Before the Board Before moving to the merits of the appeal, the Board will preliminarily explain the matters to be adjudicated in this decision. In January 2018, the RO notified the Veteran that it was removing his first wife, B., from his award effective with the May 1, 2012, compensation payment due to their April 2, 2012, divorce. This letter also notified the Veteran that his current wife, J., was being added to his award effective February 10, 2016. The retroactive removal of B. from the Veteran's award resulted in a $7,312.37 overpayment. The VA Debt Management Center (DMC) notified the Veteran of this overpayment in March 2018. Later in March 2018, the Veteran filed a statement suggesting the date J. was added to his award was incorrect since they were married on December 12, 2012, and VA did not add her to his award until February 10, 2016. He asked for the date to be adjusted and the debt to be adjusted. Also in March 2018, the Veteran filed a Financial Status Report (FSR) and requested a waiver of recovery of the overpayment. On May 30, 2018, the RO wrote to the Veteran and notified him that there was no basis to award an earlier effective date for the addition of J. to his award. In June 2018, the VA Committee on Waivers and Compromises (COWC) issued a decision denying the Veteran's waiver request. The Veteran then filed his NOD in July 2018. The NOD explicitly listed the May 30, 2018 decision as the matter being appealed. The narrative portion of the form included a statement suggesting the Veteran provided a VA 21-686c in 2012 when he married J. He asked for VA to adjust the dates his ex-wife was removed from his award and the date his new spouse was added. As noted above, the RO subsequently issued two SOCs related to those two effective date matters. As the Veteran's NOD did not list the June 2018 COWC decision or otherwise indicate any disagreement with the waiver denial, the RO did not issue an SOC related to the waiver request. The matter before the Board is limited to the date B. was removed from his award, the date J. was added to his award, and the propriety of the debt resulting from these adjustments to his benefits. The matter of whether a waiver is warranted is not before the Board, because the Veteran did not appeal the waiver decision. 1. The overpayment of VA compensation benefits in the calculated amount of $7,312.37, as a result of the removal of the Veteran's former spouse B. from his award as a dependent, effective April 2, 2012, was properly created. 2. An effective date prior to March 1, 2016, for additional dependency compensation for the Veteran's current spouse, J. is denied. In January 2008, the RO granted service connection for several disabilities cumulatively rated at 40 percent from September 28, 2006. 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. Thus, 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 January 2008 notice letter also informed the Veteran that he was receiving additional compensation benefits for his dependent spouse, B. He was furnished a VA Form 21-8764. The letter and the form stated that the Veteran should notify VA immediately if there is any change in the number or status of his dependents. He was advised that the failure to do so would result in the creation of an overpayment in his account. Several subsequent letters, including letters sent in July 2012 and March 2013, reminded the Veteran that his benefits included an additional amount for his spouse, B., and of his responsibility to notify VA of any change in dependent status. In January 2016, the RO requested updated confirmation of the Veteran's dependents. On February 10, 2016, the RO received the response, which was a Status of Dependents Questionnaire (VA Form 21-0538) showing the Veteran had married J. on December 12, 2012. The claims file includes two subsequent telephone memorandums showing the RO attempted to call the Veteran to confirm his dependent information two times in May 2017. The memorandums indicate the RO was unable to leave voicemail messages. In July 2017, the RO wrote to the Veteran requesting more information related to his divorce from B. and his marriage to J. The Veteran then submitted a VA Form 21-686c in August 2017, which suggested he and B. were divorced on February 17, 2012, and he and J. were married on December 12, 2012. In September 2017, the RO wrote to the Veteran proposing to remove B. from his award effective May 1, 2012, and notifying him that it needed a copy of the divorce decree. The letter also informed the Veteran that it needed additional information as to J.'s marital history in order to add her to the award. The Veteran later submitted copies of the divorce decree, which showed his actual date of divorce was April 2, 2012, and the marriage certificate confirming he had married J. on December 12, 2012. In January 2018, the RO notified the Veteran that it was removing B. from his award effective the date of the May 2012 VA compensation payment, due to their April 2012 divorce. This letter also notified the Veteran that J. was being added to his award effective February 10, 2016, the date the Veteran initially notified VA of their marriage. A $7,312.37 overpayment was created due to this retroactive adjustment to the Veteran's benefits. As noted above, the Veteran initially disagreed with this by way of a March 2018 statement suggesting VA was incorrect in assigning the February 10, 2016 effective date for the addition of J. to his award since they were married on December 12, 2012. Moreover, on his July 2018 NOD form and at his December 2022 Board hearing, the Veteran suggested that he notified VA of his marriage to J. in 2012. On the NOD, he suggested he notified VA at the time he completed enrollment information in the Defense Enrollment Eligibility Reporting System (DEERS). At the Board hearing, he suggested he had initially called VA and that paperwork was sent to him, which he completed and sent in three different times. These contentions also suggest the Veteran had notified VA of his divorce from B. in 2012. 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). The Veteran's retroactive termination of payment for B. was effective May 1, 2012, the first day of the month following their April 2012 divorce. That action was proper. The law and regulation are clear that the Veteran's entitlement to benefits for B., a dependent spouse, ceased when they divorced. As to the addition of J. to his award, 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 such rating; or (4) the date of commencement of the Veteran's award. 38 C.F.R. §3.401(b) (emphasis added). 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. Id. On February 10, 2016, VA first received notice that the Veteran and J. were married on December 12, 2012. Thus, the action taken to add J. to the Veteran's award effective February 10, 2016, was proper as this is the latest of the applicable dates in question. While the Veteran contends he sent the necessary documentation related to his divorce and remarriage in 2012, there is no evidence of receipt of that information by VA anytime in the time period between his April 2, 2012, divorce and the end of 2012, or between his December 12, 2012, remarriage and the end of 2012. Moreover, the Veteran was sent letters naming B. as his spouse in July 2012 and March 2013. The July 2012 letter was sent after his April 2012 divorce from B., and he did not notify VA of the error in its July 2012 letter. Moreover, the March 2013 letter again named B. as his dependent spouse and the Veteran did not respond with notice of the divorce, or notice of his remarriage to J. which had occurred by that time. There is simply no evidence to support a finding that VA was aware of the Veteran's divorce from B. and remarriage to J. anytime prior to February 10, 2016. There is no basis under the law to add J. from an earlier date. As there is no basis within the law to adjust the date B. was removed from the Veteran's award, or to adjust the date J. was added to the Veteran's award, the debt created because of the overpayment resulting from these adjustments was properly created. The Board is sympathetic to the Veteran's presented arguments and the fact that in reality, the Veteran was remarried in December 2012, and not February 2016. Nonetheless, it is his responsibility to keep VA apprised of his dependents and he was informed of this responsibility in numerous notice letters as outlined above. The Board is bound to the laws governing the effective date and propriety of the debt created. Thus, for reasons outlined above, the appeal is denied. SHEREEN M. MARCUS 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.