Citation Nr: A24075673 Decision Date: 11/18/24 Archive Date: 11/18/24 DOCKET NO. 220823-270321 DATE: November 18, 2024 ORDER The overpayment of Department of Veterans Affairs (VA) additional compensation benefits for a dependent spouse in the amount of $16,437.58 was properly created; the appeal is denied. FINDINGS OF FACT 1. The Veteran was awarded additional VA compensation for his spouse and child in February 2006 and was informed of his responsibility to notify the VA Regional Office (RO) right away of any change in the status of his dependents. 2. In October 2008, the Veteran and his first wife divorced. 3. In March 2022, the RO first received notice from the Veteran of his divorce from his first wife, and the RO then retroactively removed her from his award effective November 1, 2008, which resulted in the creation of an overpayment in the amount of $16,437.58. CONCLUSION OF LAW The overpayment of VA compensation benefits in the amount of $16,437.58 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 had active service in the United States Air Force from September 1984 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) from a March 2022 RO decision, which removed the Veteran's first wife from his award effective the first day of the month following their divorce. This action led to a $16,437.58 overpayment. The VA Debt Management Center (DMC) notified the Veteran of this overpayment in April 2022. The Veteran then filed his VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) in August 2022. The Board recognizes the Veteran listed the date of the DMC letter as the date of the decision on appeal; however, the DMC simply notified the Veteran of the overpayment created by the RO by way of its March 2022 decision. Thus, the Board finds it is the March 2022 decision that is on appeal. In the VA Form 10182, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2022 decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the matter, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 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 February 2006, he was informed that he was being paid additional benefits for his spouse and a child, and that he must notify VA right away if there is any change in the status of his dependents. He was provided a VA Form 21-8764 at that time, which explained the potential consequences for not keeping VA informed of the status of his dependents. In February 2022, the RO requested the Veteran to confirm the ongoing status of his dependent spouse. The Veteran responded in March 2022 with the submission of a VA Form 21-686c, Application to Add and/or Remove Dependents. On this form, the Veteran first informed the RO of his divorce from his first wife on October [REDACTED], 2008, and of his marriage to his current wife on May 2, 2009. The RO then issued the March 2022 administrative decision on appeal, which notified him that his first wife was removed from his award effective November 1, 2008, due to their October 2008 divorce. The RO also informed the Veteran that his current wife was added to his award effective March 14, 2022, the date the information related to her existence was received. The retroactive removal of the additional benefit being paid for the Veteran's first wife resulted in a $16,437.58 overpayment. The DMC notified the Veteran of this debt in April 2022. In May 2022, the Veteran submitted a statement recognizing his error in not reporting his divorce to VA. He indicated he had reported the changes in his status to the military without realizing that the military systems and VA systems do not communicate. The RO recognized this statement and wrote to the Veteran in June 2022 explaining why the overpayment was created, citing the relevant law. The Veteran then wrote to VA again in July 2022 explaining the stressful circumstances surrounding his divorce and indicating that it did not occur to him that his first wife had remained on his disability award. The RO responded to the Veteran in July 2022 and again explained why the overpayment was created and indicated that VA was withholding $457.00 per month from his VA compensation until the debt is fully recouped. The Veteran then filed his VA Form 10182 in August 2022. In sum, the Veteran was informed that he should promptly inform the RO of any change in the status of his dependents. He was provided a VA Form 21-8764 which stated 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. There is no record of notice of the October 2008 divorce at any time contemporaneous to that event. The RO was first notified of the divorce at the time of the submission of the March 2022 VA Form 21-686c. The RO removed the Veteran's first wife from his award effective November 1, 2008, the first day of the month following the divorce. This was done in accordance with 38 U.S.C. § 5112 (b)(2), which instructs that 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). This action was proper. The law is clear that the Veteran's right to receive additional disability compensation with respect to his first wife ceased after their divorce. Thus, this debt was properly created. The appeal is denied. The Board recognizes the Veteran's arguments related to the situation of his personal life at the time of his divorce. These arguments can be considered in a discussion of equity and good conscience in the collection of debts, which are factors considered in waiver decisions. A review of the claims file reveals that following the April 2022 DMC notice of the debt, the Veteran filed a VA Form 5655 Financial Status Report (FSR) in May 2022 requesting a waiver. The Veteran resubmitted the FSR in July 2022. The record does not include any indication that the waiver request has been addressed. With the validity of the debt now being adjudicated, it is appropriate for the waiver request to be addressed. S. Sorathia Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adamson, Amanda 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.