BVA9508261 DOCKET NO. 93-15 093 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether the action taken by the Department of Veterans Affairs to adjust the veteran's disability compensation award, effective March 1, 1985 to November 30, 1992, based on a change in dependency status, was proper. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Darryl A. Joe, Associate Counsel INTRODUCTION The veteran had active military service from October 1960 to October 1980. This matter came before the Board of Veterans' Appeals (the Board) on appeal from action taken by the St. Petersburg, Florida Regional Office (RO) in December 1992 to adjust his disability compensation benefits from March 1, 1985 through November 30, 1992. The RO has determined that, as a result of his failure to notify the Department of Veterans Affairs (VA) until November 1992 of his divorce from his former spouse in February 1985, the veteran was overpaid VA disability compensation benefits in the calculated amount of $2,445. The Board notes that, in his May 1993 substantive appeal, the veteran argued that recoupment of the above-described overpayment would cause him to experience undue financial hardship. While we acknowledge his contention, we must nevertheless point out that consideration of equitable factors such as undue financial hardship is not provided for by the law and VA regulations which govern the issue in this case, which involves the question of whether his award was properly adjusted and not whether recovery of the resulting overpayment may be waived. However, we believe that the veteran's statement may indicate a desire on his part to pursue a claim seeking waiver of recovery of the overpayment of disability compensation benefits in the amount of $2,445. This matter is referred to the RO for further clarification and appropriate action. Since this matter has not been adjudicated at the RO it is not before the Board on appeal. 38 U.S.C.A. §§ 7104, 7105 (West 1991). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO improperly reduced his disability compensation benefits from March 1, 1985 to December 1, 1992, based on his marital status. The veteran has indicated that he divorced his wife Claudette on February 7, 1985, and married Jeanne on June 14, 1985. He maintains that he reported his divorce and remarriage to unspecified agencies at Homestead Air Force Base, Florida. The veteran also states that he believes that he forwarded a notarized copy of his marriage certificate in 1985, but VA failed to respond to his submission. According to the veteran, evidence which could be used to substantiate his claim was destroyed by Hurricane Andrew. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim that the RO improperly adjusted his disability compensation award, effective from March 1, 1985 through November 30, 1992. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran married his former wife Claudette on June 30, 1962. 3. Effective December 1, 1981, the veteran was awarded VA disability compensation benefits; he was then and thereafter notified on several occasions that his award included additional benefits for his spouse, and advised of the necessity for promptly reporting any changes in dependency. 4. The VA first became aware of the change in the status of the veteran's dependent spouse in August 1992, when he reported that Jeanne was his wife; in November 1992, the veteran reported his February 1985 divorce from Claudette, and subsequent marriage to Jeanne in June 1985. 5. There is no credible evidence of record to show that the veteran notified VA of his divorce and remarriage prior to 1992. CONCLUSION OF LAW The RO's decision to adjust the veteran's disability compensation award effective March 1, 1985, through November 30, 1992, was proper. 38 U.S.C.A. §§ 5107, 5111(a) 5112(b)(2) (West 1991); 38 C.F.R. §§ 3.401(b)(1), 3.501(d)(2) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we have determined that the veteran's claim is well- grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented a claim which is plausible. Additionally, we find that the RO has obtained all relevant evidence in regard to his claim and that no further assistance to the veteran is required to comply with the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a). It has been maintained by the veteran that the RO improperly adjusted his disability compensation benefits from March 1, 1985 through November 30, 1992, due to a change in his dependency status. The veteran was awarded VA disability compensation benefits effective from December 1981, in an award action of November 1981. Investigation further shows that the veteran was married to Claudette at the time of the compensation award. At that time, and on several subsequent occasions, the veteran was advised that his compensation award included additional benefits for his dependent spouse. He was further advised of his obligation to promptly report any changes in his dependency status to the VA. The veteran was warned that failure to comply with VA's reporting requirements could result in the adjustment or termination of his VA benefits. In July 1992, the RO wrote to the veteran requesting the Social Security number of his dependent spouse. He thereafter responded to this request in August 1992, by providing Social Security information for his wife, Jeanne M. Proctor. By correspondence dated later in August 1992, the RO informed the veteran of its proposal to retroactively reduce his payments to December 1, 1981, based on the information provided by him reflecting the change in his marital status. Responding to the RO's proposed action, the veteran submitted several documents, including VA Form 21-686c, Declaration of Status of Dependents, which showed that he became divorced from Claudette on February 7, 1985, and married to Jeanne on June 14, 1985. In December 1992, the RO informed the veteran that his disability compensation award had been reduced effective March 1, 1985, based upon the evidence showing that his marriage to Claudette ended on February 7, 1985. Jeanne was reflected as his wife for purposes of his award effective December 1, 1992. The RO's action resulted in the creation of an overpayment of disability compensation benefits in the calculated amount of $2,445. Under relevant law and VA regulations, the effective date of discontinuance of compensation to a veteran for a dependent spouse is the last day of the month in which the divorce or annulment occurred. 38 U.S.C.A. § 5112(b)(2); 38 C.F.R. § 3.501(d)(2). An award of additional compensation payable to a veteran on account of marriage will be the date of the veteran's marriage, if evidence is received within one year of the date of the event. Otherwise, the effective date for additional compensation based on marriage will be the date that notice of the marriage was received if the evidence is received within one year of the VA request. 38 C.F.R. § 3.401(b)(1). Payment of monetary benefits based on an increased compensation award may not be made to an individual for any period before the first day of the calendar month following the month in which the increased award became effective. 38 U.S.C.A. § 5111(a). The Board has conducted a thorough review of the record in this case, in light of the veteran's contentions. We do not agree with his assertion that the RO improperly reduced his VA compensation award after it was learned that he was no longer married to Claudette. As noted above, the law and VA regulations are quite specific in this regard. The veteran's divorce from Claudette became final on February 7, 1985; therefore the RO correctly discontinued his allowance for a dependent spouse effective March 1, 1985. 38 U.S.C.A. § 5112(b)(2); 38 C.F.R. § 3.501(d)(2). He failed to provide VA with notice of his divorce from Claudette and subsequent marriage to Jeanne until November 1992. Consequently, the RO correctly reinstated his benefits for a dependent spouse effective December 1, 1992, the first of the month following the date of receipt of information confirming his divorce and marriage to Jeanne. 38 U.S.C.A. § 5111(a); 38 C.F.R. § 3.401(b)(1). Although the veteran maintains that he notified VA sometime in 1985 of his divorce and remarriage, we do not find any objective evidence of record which corroborates his assertions. In view of the circumstances discussed herein, the Board concludes that the RO properly adjusted the veteran's disability compensation benefits from March 1, 1985 through November 30, 1992. ORDER The reduction of the veteran's disability compensation benefits from March 1, 1985 through November 30, 1992, based on a change in dependency status, was proper. D. C. SPICKLER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.