Citation Nr: A25041253 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 210928-188405 DATE: May 6, 2025 ORDER The reduction of VA compensation effective August 1, 2012 based on removal of the Veteran's spouse, D.G., as a dependent was not proper. The resulting overpayment debt was not valid, and the appeal is granted. FINDING OF FACT The Veteran has been married to and has been living with D.G. continuously since October 1998. CONCLUSION OF LAW The criteria for reinstatement of dependent compensation for the Veteran's spouse, D.G., effective August 1, 2012 are met. 38 U.S.C. §§ 1115, 5101, 5110; 38 C.F.R. §§ 3.4, 3.31, 3.401. REASONS AND BASES FOR FINDING AND CONCLUSION The decisions on appeal were issued in May 2021 and August 2021 and constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. The Veteran's appeal involves a May 2021 reduction of VA compensation benefits based on removal of her spouse, D.G., as a dependent from her award, and an August 2021 Debt Management Center Decision as to the resulting creation of a $6446.74 overpayment debt. The Veteran has appealed the validity of the debt. In the September 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the May 2021 and August 2021 agency of original jurisdiction (AOJ) decisions on appeal, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. Whether the reduction of VA compensation effective August 1, 2012 based on removal of the Veteran's spouse from her award, to include the validity of the resulting overpayment debt Any veteran who is entitled to compensation, and whose disability is rated not less than 30 percent, shall be entitled to additional compensation for dependents, including a spouse and each child. 38 U.S.C. § 1115(1)(A). The effective date of the award of any benefit or increase by reason of marriage or the birth/adoption of a child shall be the date of that event, if proof is received by VA within a year from the date of marriage, birth, or adoption. 38 U.S.C. § 5110(n). Where the law places the burden on the claimant to produce evidence necessary for VA to determine whether an award of benefits may be properly made but does not specifically identify the kind of evidence required to establish entitlement, it is left to VA's discretion on a case-by-case basis to determine what information and evidence is needed and it is not an arbitrary and capricious exercise of that discretion to require the claimant to submit the requested information and evidence prior to approving the application for benefits. See Caranto v. Brown, 4 Vet. App. 516, 519 (1993). The record shows that the Veteran was in receipt of a running award of VA compensation benefits since September 2012 and was being paid as a veteran with one dependent. Her payment included an additional amount of benefits for her spouse. In a September 2020 letter, the Veteran was informed that she was being paid additional money for her service-connected disability for her spouse. She was asked to complete an enclosed VA Form 21-0528, Mandatory Status of Dependents, to continue to receive additional benefits. She was informed that if she did not complete and return the form, VA would propose reducing her benefits. The Veteran did not submit the Mandatory Status of Dependents form. In a December 2020 letter, VA proposed to remove her dependent spouse, D.G. effective August 1, 2012 from her award. She was informed that to confirm a dependency relationship to D.G., she would need to return a completed VA Form 21-0538, Status of Dependents Questionnaire. The Veteran did not submit the requested Status of Dependents Questionnaire. In a second December 2020 letter, VA removed the D.G. as a dependent from the Veteran's current award effective January 1, 2021 as she failed to verify dependent status. She was informed that VA would remove D.G. from her award from the earlier date of August 1, 2012 as proposed if she did not provide verification of dependency within 90 days. The Veteran did not respond to the request for verification of dependent status. In a May 2021 decision, the AOJ removed D.S. as a dependent from the Veteran's award effective August 1, 2012 and reduced her compensation award accordingly. The Appellant was informed that she may be able to reinstate benefits for her dependents back to the earliest possible effective date if she submitted the requested dependent verification within a year from the date of the letter. The resulting overpayment debt was assessed in an August 2021 decision. The Board finds that the reduction of dependent compensation for D.S. was procedurally proper. The Veteran failed to respond to repeated requests for information requested by the AOJ. See Hurd v. West, 13 Vet. App. 449, 452 (2000); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996); see also Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). She was informed of the reasons for the reduction and was informed that she had 60 days following the date of the December 2020 notice letter to submit evidence to show that the proposed action should not be taken. She was also informed of his right to a personal hearing to present evidence or argument in support of his claim. 38 C.F.R. §§ 3.103 (b)(3), 3.105(h). The Board finds that the reduction of VA compensation effective August 1, 2012 based on removal of D.G. as a dependent was not factually proper. During the pendency of the appeal, along with her September 2021 Notice of Disagreement, the Appellant submitted a VA Form 21-686c, Application to Add and/or Remove Dependents in which she verified that she continued to be to her spouse, D.G., and that they continued to live together. As the VA Form 21-686c included the same information necessary to establish dependent status for D.G. as requested in the Status of Dependents Questionnaire and Mandatory Status of Dependents forms, the Board finds that it is sufficient to establish continued dependent status for D.G. The September 2021 Application to Add and/or Remove Dependents shows that the Veteran has been married to and living with D.G. continuously since October 1998. The evidence was submitted within one year of the May 2021 decision which reduced her VA compensation. For these reasons, the Board finds that reinstatement of dependent compensation for the Veteran's spouse, D.G. is warranted effective August 1, 2012. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kung, Christine 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.