210819-179835
210819-179835
| Board of Vet. App. | Aug 31, 2021Background
- Veteran's spouse died in May 2015; Veteran faxed a death certificate to VA on June 1, 2015 notifying VA of the death.
- VA's June 2015 response mistakenly treated the transmission as an "intent to file" rather than processing removal of the spouse as a dependent.
- VA did not remove the spouse from the Veteran's award until an April 2021 administrative determination following a February 2021 VA letter asking the Veteran to confirm dependents.
- The AOJ applied the removal retroactively to June 1, 2015 and a higher-level review indicated an overpayment of $7,562.00.
- The Board of Veterans' Appeals found VA alone at fault for failing to timely process the death notice, held the effective date of any reduction should be the date of last payment, and concluded the retroactive overpayment was improperly created (no debt exists).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper effective date for reduction and resulting overpayment | Veteran: he timely notified VA (June 1, 2015); any reduction should not create a debt because VA's error caused the excess payments | AOJ/VA applied removal effective June 1, 2015 and treated prior payments as overpayment to be recovered | Board: VA's administrative error means effective date is date of last payment; retroactive overpayment creation was improper; no debt exists |
| Allocation of fault for the overpayment | Veteran: fault lies solely with VA because he provided timely notice and had no reason to know VA failed to act | VA implied the reduction and collection were appropriate once processed in 2021 (i.e., that overpayment was properly created) | Board: fault clearly on VA; when VA solely at fault, debt should not be created against beneficiary |
Key Cases Cited
- Dent v. McDonald, 27 Vet. App. 362 (2015) (defines "erroneous award" to include payments after the initial award and discusses allocation of fault for overpayments)
- Jordan v. Brown, 10 Vet. App. 171 (1997) (addresses allocation of fault when both VA and beneficiary share responsibility)
- Schaper v. Derwinski, 1 Vet. App. 430 (1991) (procedural principles for challenging VA debts and overpayments)