Bench & Bar March/April 2025

lasting over 60 days. The veteran was informed of the requirement to report such changes, yet he continued to accept full benefits despite being ineligible. The Board determined that the overpayment was valid, and the veteran was solely at fault for not notifying the VA of his incarceration status. DOCKET NO. 11-21 248 CITATION NR: 1638173 DECISION DATE: 9/28/16 Overpayment of VA disability compensation in the amount of $9,601, resulting from the removal of the former spouse as a depen dent, is valid. The veteran was significantly at fault for not promptly notifying the VA of her divorce, despite receiving multiple notifica tions emphasizing her responsibility to report changes in dependent status. Although the veteran claimed she submitted the necessary forms to update her dependent status, the evidence indicates these submissions occurred long after her divorce and were not properly documented in the claims file, leading the Board to find her testi mony not credible. DOCKET NO. 00-12 854 CITATION NR: 0201247 DECISION DATE: 2/6/02 The veteran's spouse filed a claim for apportionment of the veteran's VA disability compensation in order to support their children. She said the veteran was living with another woman. He did not respond, so she won the request for apportionment. VA's fault in mistakenly transferring any payment to his bank account does not relieve him of his responsibility to promptly report the erroneous receipt of excessive VA benefits and take steps to prevent the overpayment. DOCKET NO. 13-00 468A CITATION NR: 1508766 DECISION DATE: 2/27/15 Veteran requested waiver of recovery of an overpayment of non-ser vice-connected pension benefits in the amount of $6,878 from the Office of Personnel Management (the veteran had become a federal employee and received pension benefits from that job). He argued that VA should honor his bankruptcy proceedings to discharge his VA debt. Here, the decision considered that the 10th Circuit Court explained that "recoupment" was an equitable doctrine in bankruptcy that allowed one party to a transaction to withhold funds due to another party, when the debts arise out of the same transaction. A debt caused by VA overpayment is not a debt that can be discharged under bankruptcy; rather, it is an obligation that VA can recoup after bankruptcy. See In re Boyd , 223 B.R. 536 (Banker. E.D. Ark. 1998) (finding that a mandate that readjustment pay be recouped from disability benefits does not constitute a debt to the United States and that VA was entitled to recoup readjustment pay despite that veteran's bankruptcy discharge). DOCKET NO. 13-28 564 CITATION NR: 1711189 DECISION DATE: 4/7/17 The VA Pension Management Center had reduced the veteran's pension benefits $14,471 effective April 1, 2003, due to his receipt of Social Security Administration income. The veteran's request for waiver of overpayment was received on January 25, 2013, more than

180 days after notification of the overpayment and the 180-day time limit for filing a request for waiver of overpayment. His VA pension was based on countable income, and therefore, this increase in income due to his SSA benefits affected his entitlement to VA pension benefits. Specifically, his pension was reduced, which resulted in an overpayment of benefits which he had been paid. Entitlement to waiver of recovery of overpayment was denied. DOCKET NO. 19-27 872 CITATION NR: 22064008 DECISION DATE: 11/16/22 The veteran was married when he applied for Veterans Adminis tration disability benefits. He divorced and then was approved for the disability benefits. He failed to tell the VA until five years later. The decision not to add the veteran's former spouse for the period during which they were married was proper; the appeal is denied. The VA had informed him "You must tell us immediately if there is any change in the number or status of your dependents. Fail ure to tell VA immediately of a dependency change will result in an overpayment which must be repaid." A VA Form 21-8764 was provided at that time, which explained the responsibilities of the veteran in this regard. DOCKET NO. 13-16 184 CITATION NR: 21020822 DECISION DATE: 4/8/21 The veteran was at fault in the debt’s creation as he failed to notify VA of his divorce and remarriage for a period of approximately 16 years. The recovery of the VA spousal dependency benefits would nullify the objective for which the benefits were intended for the period after January 1991, as he remarried R.M. in December 1990, fol lowing his divorce from G.L. that same month. CONCLUSION Extreme patience is needed to work through VA overpayment prob lems. The fact that the veteran is right, and the VA is wrong doesn’t help much. If the veteran requests a waiver, the veteran should address each of the elements the VA will consider to determine if “reasonableness and moderation” are needed in the veteran’s case.

ABOUT THE AUTHOR BRAD HARRIS is an attorney with the Harris Federal Law Firm in Lexington. He is a member of the Texas, Kentucky, and Washington D.C. Bar associations. He is a member of the KBA Military and Veterans Law Committee, the Metropolitan Washington Employment Lawyers Association,

the National Employment Lawyers Association, the Trial Lawyers Association of Metropolitan Washington D.C. the National Orga nization of Veterans Advocates, the Kentucky Justice Association, and on the Board of Directors of the national Workers Injury Law Group. Harris can be reached at (859) 321-0200 or via email at brad@harrisfederal.com.

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