DIC dependent question?

[Buck52]

Hello Everyone

I have a question concerening my late wife dependent payment. (Sorry its a little long read but not to bad)

My wife died Oct 6th 2021.

it took a while to have her service waiting on friends & family to attend her servce.

Ok I wrote the VA my R.O. a letter telling them about my wife death of Oct 6th 2021. (Oct 17tth) please remove her (Brenda )dependent status from my compensation .  thank you.

They sent me back a letter some 40 days later   but in that  letter  thay sent in a letter stating that they were sorry to hear about my wife death, then they said we will be removing your wife Brenda dependent benefits, and they sent me a letter to appeal the decsion  and said if I APPEAL NO FURTHER ACTION WILL TAKE PLACE UNTIL A DECISION IS MADE.

Ok I sent them back  A DISAGREMENT letting them know not to remove my wife benefits at this time due to the hardship it will casue me, we have a set allowance of creditiors we own  and her dependent status $$  helped pay thoe creditiors  if I have to go barrow the $$ to pay this overpayment back  will inflick even more hardship on me so please think about this for my sake and not remove her benefits at this time OR A WAIVER FOR THE  ALLEDGED OVERPAYMENT.  

OK SOME 40 Days later I have not heard one word from them  by mail phone call nothing, so I wtote them another letter asking them or leetting them know to go ahead and remove my wife dependent status  I was wrong in asking or disagreeing with your earler decision ,  so please remove her benefits.

I do not want to be stuck owning any one else  simply because I could not afford it.  I even had to give up  my wife Brenda new Car   or had someone to take refinace the loan put it in there name  which I DID AND EVERYTHING WAS GOING OK...FOR ME UNTIL A FEW WEEKS AGO I FALLEN  BROKE MY FOOT AND BUSTED A COUPLE RIBS IN MY FALL.

YESTERSDAY THE 28 Jan 2021  I recived a letter  from VA TELLING ME THEY REMOVED MY WIFE DEPENDENT PAYMENT 

EFFECTIVE DATE nov 1st 2021   and mention the over payment, dept of mmangment  office will be sendin gme a lette rletting me know how much the overpayment is to make arragement to repay this.

 

CFR 38 3.500 1 (b)

 1) Effective date of award or day preceding act, whichever is later, but not prior to the date entitlement ceased, on an erroneous award based on an act of commission or omission by a payee or with the payee's knowledge.

i JUST DONT THINK ITS FAIR  THAT THEY MAKE ME PAY THE OVERPAYMENT BACK WHEN ITS THEIR FAULT AN OVERPAYMENT OCCURED.

  WHEN THEY KNEW OF MY WIFE DEATH FROM THE  OCT 17TH  2021 LETTER I HAD WRITTEN TO MY R.O. ASKING THEM TO PLEASE REMOVE MY WIFE DEPENDENT STATUS.

BUT THEY KEPT PAYING ME HER DEPENDENT STATUS  SO  I WROTE THEM ANOTHER LETTER AROUND DECEMBER 1ST 2021 ASKING THEM AGAIN TO REMOVE HER DEPENDENT STATUS,  I REALIZE  THAT MAY HAVE BEEN TO LATE  BUT THE POINT IS THEY WERE INFORMED BY ME OTHER DATES TO REMOVE HER DEPENDENT STATUS  SO IT WOULD NOT END UP IN  OR AS A OVERPAYMENT.

iS THIS A CUE ON THE VA PART BY NOT REMOVING HER DEPENDENT STATUS WHEN THEY FIRST HEARD OF HER DEATH IN  MIDDLE  OF OCT 2021?   or REMOVED HER DEPENDENT STATUS Nov 1st2021   it obvious they never did but they said they did  other wise I would not have an overpayment.    IF HER DEPENDENT STATUS WAS REMOVED on the 1st of November 2021 THERE WOULD NOT BE AN OVERPAYMENT.

If I have to pay this  I will need to go get a loan and thats all I need right now its all I can do to run a tight budget and pay my bills..SIMPLY BECAUSE WE RELIED ON MY WIFE INCOME ALSO.

SO I AM REQUESTING A WAIVER FOR THIS ACTION NOT TO HAPPEN FOR THE OVER PAYMENT.

Any feed back from you guys will be greatly  helpful  .I am going to fight this and see what happens based on this evidence and the hardship it will cause me.

Cordially Yours 

Buck

.

Edited January 29, 2022 by Buck52

[Berta]

Buck, I think you did the best thing- to request a waiver of the debt!

I have no idea if VA will waive the dept but it could be repaid ,I believe, in monthly payments from your VA comp. 

However you might have a very good case for a Waiver-as re: the waiver BVA granted below after the denial case.

This is a long response but it might help others out there.

There are Many overpayment appeals at the BVA and many involve Thousands of dollars. MOST are denied.

There was one remanded appeal on overpayment, and it appeared to me that the RO definitely made an administration error  in the amount they said the veteran owed them regarding a dependency allowance.

"With respect to the Veteran's receipt of additional compensation for R.C., the Board finds that VA has properly determined that he was not entitled to additional dependency compensation for this spouse beginning January 1, 2007. Here, the record reflects that R.C. died on December [REDACTED], 2016. As this occurred after October 1, 1982, the last date of entitlement to additional dependency compensation for her was the last day of the month in which the death occurred (i.e., December 31, 2006). See 38 C.F.R. § 3.500(g)(2)(ii). Beginning the next day (i.e., January 1, 2007), he was no longer entitled to any additional dependency compensation for this spouse."

(This is an unusual case)

"An administrative error resulting in an overpayment will not be classified as a VA administrative error or error in judgment if the error is "based on an act of commission or omission by the beneficiary, or with the beneficiary's knowledge." Dent, 27 Vet. App. at 380 (citing 38 U.S.C. § 5112(b)(9); 38 C.F.R. § 3.500(b)(1); VAOPGREC 2-90 (March 20, 1990)). Sole administrative error connotes that the claimant neither had knowledge of, nor should have been aware of, the erroneous award. Further, neither the claimant's actions nor his or her failure to act must have contributed to payment pursuant to the erroneous award. 38 U.S.C. § 5112(b)(9), (10); 38 C.F.R. § 3.500(b)(2); Jordan v. Brown, 10 Vet. App. 171 (1997) (sole administrative error is not present if the payee knew, or should have known, that the payments were erroneous). Thus, a finding of sole administrative error requires not only error on the part of VA, but that the beneficiary is unaware that the payments are erroneous."

The BVA denied the appeal but states:

"Based on these numerous letters, the Board finds that the Veteran knew, or should have known, that he was in receipt of additional dependency compensation for R.C. and that he was required to inform VA right away if any change in their marital status occurred, to include due to her death. The Board acknowledges that the Veteran does not challenge these facts and sympathizes with his request that VA consider an earlier payment date for his current spouse. However, the Board is bound by the statutes and regulations governing the provision of VA benefits. In light of his knowledge that he was in receipt of additional dependency compensation for R.C. to which he was not entitled, the Board cannot say as a matter of law that the overpayment caused by the delayed reporting of her death and the delayed reporting of his marriage to his current spouse was not properly created. The Board emphasizes to the Veteran, however, that if he has not yet received a demand letter for this overpayment and wishes to request a waiver of the debt, he should promptly submit such a request in accordance with the instructions on any such demand letter he may receive in the future."

The veteran had not yet requested a waiver-my point is that this BVA case states the regulations that control overpayments.

It appears since he has remarried, that his present spouse might cause VA to reduce the overpayent if he requests a VA dependency allowance for his current spouse.

It also appears to me that he had no one on his POA to help with these issues and he might not have had a PC in order to google what the overpayment regulations were-and that he could have filed a waiver-

https://www.va.gov/vetapp21/Files9/A21016008.txt

I do not see CUE potential in your case.But by all means request a waiver!

"This waiver was granted in a BVA decision in a 2021 BVA decision:

ORDER The overpayment of VA compensation benefits in the amount of $1,625.11 was properly created, and entitlement to a waiver of indebtedness for the recovery of the overpayment of $1,625.11 is granted. FINDING OF FACT 1. The Veteran’s spouse died in October 2016. 2. The Veteran timely informed VA of a change in dependent status in October 2016 with the submission of VA Form 21-686c, Declaration of Status of Dependents. 3. The RO did not effectuate the change to the Veteran’s account until September 2017, upon receipt of a second VA Form 21-686c, Declaration of Status of Dependents; a monthly overpayment in disability compensation occurred, effective November 1, 2016, creating an indebtedness of $1,625.11. 4. Recovery of the overpayment would be against equity and good conscience as the Veteran’s fault was minimal and VA’s fault in the creation of the overpayment by not timely effectuating the change in dependent status greatly outweighs any fault that may be attributed to him. CONCLUSIONS OF LAW 1. The overpayment of VA compensation benefits in the amount of $1,625.11 was properly created. 38 U.S.C. §§ 5110, 5112; 38 C.F.R. §§ 3.4, 3.500, 3.501. 2. Recovery of the overpayment of compensation benefits in the amount of $1,625.11 would be against equity and good conscience. 38 U.S.C. § 5302; 38 C.F.R. §§ 1.963, 1.965."

and:

"The Veteran seeks a waiver of indebtedness for the recovery of the overpayment of $1,625.11. He asserts that waiver is appropriate because he timely informed VA of the death of his spouse and the creation of the debt was the result of administrative delay. For the reasons that follow, the Board finds that a waiver is warranted."

 

https://www.va.gov/vetapp21/Files3/A21005557.txt

I suggest that you carefully read over how BVA came to this conclusion to waiver the debt. The BVA also noted this  veteran had some responsibiity in the creation of the debt but weighed that against the VA's delay :

 

"As noted above, the factors are not all inclusive, and the Board will highlight one additional factor that weighs in the Veteran’s favor.  The debt amounts to a considerable sum of $1,625.11.  The change in the Veteran’s monthly compensation, in contrast, was small, and what was a slight overpayment in monthly compensation was allowed to balloon into a $1,625.11 debt over the course of 11 months.  This debt was suddenly sprung upon the Veteran and its creation was primarily due to the inaction of VA.  Thus, the fault on part of VA combines with the size of the debt to further weigh in favor of the grant of a waiver.

 

Accordingly, a waiver of the entire indebtedness of $1,625.11 is warranted.  "

BVA cites 

38 C.F.R. § 1.965.

https://www.law.cornell.edu/cfr/text/38/1.965

You can read over that regulation and shape the waiver with it and be sure to cite it in the waiver.

BVA decisions are not to be used as evidence  because they are specific solely for the claimant they are written for-

HOWEVER they contain a weath of legal citations and even what I call CLUES.

A BVA clue ( one word)in the first paragraph of a local vets decision years ago caused me to help him prove he had diabetes while in the Army.I did a lot of research on his hard to read SMRs, and on Endodrinology and prepared a lay statement for his private doctor, on my redearch,  who  gave him a free brief IMO/IME which awarded the claim , after Many years.

I used a legal statement from a past BVA case I had-to force the VA to pay me something they didnt way to pay at all. They did pay me after I contacted the OGC who ordered them to send the cash. I think that old BVA case I had  was denied  in the "not well grounded" days long ago.

I already explained that situation here-but I have learned that it pays to research and read and re- read some of these VA regulations, and these BVA decisions.

It takes a lot of time and I do it almost every day-because VA is not the enemy of a claimant- TIME is.

And it took me some time to find the above recent  waiver at BVA that had been granted.

We often can not depend on anyone but ourselves, to get the evidence and regulations we need, to succeed on anything re: the VA.

 

 

 

 

 

 

 

 

 

 

Edited January 29, 2022 by Berta
CTS

[Buck52]

Thank you Ms Berta

I DO NOT THINK IN MY JUDGEMENT THAT I WAITED TO LONG TO REPORT HER DEATH.

   HER DEATH WAS REPORTED TO THE VA R.O  .BY ME IN A LETTER TO MY R.O. DURING THE MONTH THAT SHE DIED.

SHE DIED ON THE 6TH OF OCT 2021,  ON OR AROUND THIS DATE 0CT 17TH 2021   I SENT THEM A LETTER LETTING THEM KNOW OF MY WIFE DEATH FOR OCT 6TH 2021.

  SO IT WAS NOTA  DELAY IN LETTING THE VA KNOW OF HER DEATH  SO CHANGES COULD BE MADE ON MY COMPENSATION.  ( 3 8 C.F.R. § 1.965.)

ALSO THEY SAID THEY WOULD REMOVE HER DEPENDENT BENEFITS NOV 1ST 2021, THEY OBVIOULSY FAILED TO DO THAT AND KEPT PAYING ME  HER BENEFITS  AND  WROTE THEM BACK ASKING THEM TO PLEASE REMOVE MY WIFE DEPENDENT BENEFITS  SO IT WOULD NOT END UP AS AN OVERPAYMENT TO ME.

[Buck52]

I ALSO HAVE THE GREEN CARD RETURN SIGN RECIEPT SOMEONE FROM MY R.O. SIGN FOR THEM  I GOT BACK   FROM THE POST OFFICE WHEN I MAILED THEM THESE LETTERS TO INFORM THEM OF MY WIFE DEATH,.

SO THOSE WOULD BE MY EVIDENCE I INFORMED THEM IN TIME FOR THEM TO REMOVE MY WIFE BENEFITS   SO THIS WOULD NOT END UP AS AN OVERPAYMENT.

iTS NOT MY FAULT THEY FAILED TO REMOVER HER DEPENDENT STATUS WHEN THEY WERE NOTIFIED BY ME.

Edited January 29, 2022 by Buck52

[Berta]

"AND  WROTE THEM BACK ASKING THEM TO PLEASE REMOVE MY WIFE DEPENDENT BENEFITS  SO IT WOULD NOT END UP AS AN OVERPAYMENT TO ME."

A copy of that letter that is dated ( and preferably with a proof of mailing) is good evidence to attach a copy of -to your request for a waiver.

I had so many problems with the ROas a widow that I aways sent them stuff via priority mail with a tracking slip.

Funnt ho they always failed to mention receipt of my most probative evidence. When I gave H VAC testimony during Shredergate. I sent them a color copy of 53 USPS tracking slips of evidence they had ignored on all of my issue.

All of them involved Probative evidence. I sent the 6 page autopsy 12 times.

They removed any copies of it and also a favorable Peer Review before they sent the files to the OGC.

When I called VACO as to how they first denied the wrongful death claim, the VACO doctor was shocked to learn that an autopsy had been done, and as soon as she got it from me,within days ,  the OGC called me up to settle.

I keep every single letter to and from the VA. My C file is much larger than my husband's was. He had never been denied in his lifetime.

But had 2 claims pending when he died, that I succeeded in....in spite of lousy POAs who didnt have a clue on DIC and accrued.

Your letters to the VA are good Evidence.

 

 

[Buck52]

36 minutes ago, Berta said:

"AND  WROTE THEM BACK ASKING THEM TO PLEASE REMOVE MY WIFE DEPENDENT BENEFITS  SO IT WOULD NOT END UP AS AN OVERPAYMENT TO ME."

A copy of that letter that is dated ( and preferably with a proof of mailing) is good evidence to attach a copy of -to your request for a waiver.

I had so many problems with the ROas a widow that I aways sent them stuff via priority mail with a tracking slip.

Funnt ho they always failed to mention receipt of my most probative evidence. When I gave H VAC testimony during Shredergate. I sent them a color copy of 53 USPS tracking slips of evidence they had ignored on all of my issue.

All of them involved Probative evidence. I sent the 6 page autopsy 12 times.

They removed any copies of it and also a favorable Peer Review before they sent the files to the OGC.

When I called VACO as to how they first denied the wrongful death claim, the VACO doctor was shocked to learn that an autopsy had been done, and as soon as she got it from me,within days ,  the OGC called me up to settle.

I keep every single letter to and from the VA. My C file is much larger than my husband's was. He had never been denied in his lifetime.

But had 2 claims pending when he died, that I succeeded in....in spite of lousy POAs who didnt have a clue on DIC and accrued.

Your letters to the VA are good Evidence.

 

 

yes mam  I do,

  Also they should check their records and can see the letters I sent them,   although they may not can find them or someone conveintly stuck them in my C-File TO HIDE THEM SO NO ONE UP THERE MAKING THE DECISON WILL SEE THEM.?  (Just saying)

JUST PLAIN IDIOTS WITH NO COMMON SENSE WHAT SO EVER  WE VETERANS ALWAYS HAVE TO SPOON FEED THESE IDIOTS.