Citation Nr: 0801653 Decision Date: 01/15/08 Archive Date: 01/29/08 DOCKET NO. 05-00 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to waiver of recovery of an overpayment of non- service connected disability pension benefits in the amount of $9, 279.00 REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty from November 1952 to November 1955. This appeal arises from a February 2004 decision of the Committee on Waivers and Compromises of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. FINDINGS OF FACT 1. The evidence demonstrates that the veteran's total income is used to meet monthly expenses for basic necessities for himself and his wife. 2. Repayment of the debt would deprive the veteran and his wife of basic necessities and would defeat the purpose of the VA pension benefits program. CONCLUSION OF LAW The criteria for waiver of recovery of the overpayment of pension benefits in the calculated amount of $9,279 have been met. 38 U.S.C.A. §§ 5107, 5302 (West 2002); 38 C.F.R. § 1.965 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The United States Court of Appeals for Veterans Claims (Court) has held that VA has no notice or duty to assist obligations under 38 U.S.C.A. §§ 5102, 5103A and their implementing regulations in the context of the issue on appeal. See Lueras v. Principi, 18 Vet. App. 435 (2004); Barger v. Principi, 16 Vet. App. 132 (2002). Relevant Laws and Regulations. The pertinent statute 38 U.S.C.A. § 5302(c) (West 1991), provides: The recovery of any payment or the collection of any indebtedness (or any interest thereon) may not be waived under this section if, in the Secretary's opinion, there exists in connection with the claim for such waiver an indication of fraud, misrepresentation, or bad faith on the part of the person or persons having an interest in obtaining a waiver of such recovery or the collection of such indebtedness (or any interest thereon). 38 U.S.C.A. § 5302(c). Any portion of an indebtedness resulting from participation in benefits programs administered by VA which has been recovered by the U.S. Government from the debtor may be considered for waiver, provided the debtor requests waiver in accordance with the time limits of § 1.963(b). If collection of an indebtedness is waived as to the debtor, such portions of the indebtedness previously collected by VA will be refunded. 38 C.F.R. § 1.967(a) (2000). A VA pension recipient must notify VA of all circumstances which will affect his or her entitlement to receive, or the rate of, the benefit being paid. Such notice must be furnished when the recipient acquires knowledge that his or her income changed. 38 C.F.R. § 3.660(a)(1) (2000). The standard "equity and good conscience" will be applied when the facts and circumstances in a particular case indicate a need for reasonableness and moderation in the exercise of the Government's rights. The decision reached should not be unduly favorable or adverse to either side. The phrase "equity and good conscience" means arriving at a fair decision between the obligor and the Government. In making this determination, consideration will be given to the following elements, which are not intended to be all inclusive: 1. Fault of debtor. Where actions of the debtor contribute to creation of the debt. 2. Balancing of faults. Weighing fault of debtor against VA fault. 3. Undue hardship. Whether collection would deprive debtor or family of basic necessities. 4. Defeat the purpose. Whether withholding of benefits or recovery would nullify the objective for which the VA benefits were intended. 5. Unjust enrichment. Failure to make restitution would result in unfair gain to the debtor. 6. Changing position to one's detriment. Reliance on VA benefits results in relinquishment of a valuable right or incurrence of a legal obligation. 38 C.F.R. § 1.965(a). Factual Background. The veteran seeks a waiver of recovery of a $9,279.00 overpayment of pension benefits. In a July 1987 letter the RO notified the veteran of an award of pension benefits, effective March 1986. In August 1987, the veteran submitted an Improved Pension Eligibility Verification Report, together with evidence he had been awarded Social Security Administration (SSA) benefits, effective from 1983. A November 1987 letter from the RO to the veteran informed him that his VA pension was directly related to his income from other sources. His rated of pension would be reduced whenever he received income from another source. He was instructed to notify VA immediately if he had received any income other than that shown, and that if he received any additional income in the future. Failure to inform VA promptly of income changes would result in creation of an overpayment in his account. In April 2002, the RO informed the veteran they proposed reducing his pension based on information indicating they received noting his family income had changed. Information from SSA indicated he was receiving $667 in SSA benefits. In May 2002, the veteran submitted a copy of his award letter from SSA which indicated he was receiving $613 from SSA, after deductions for Medicare. At his hearing before the undersigned Veterans Law Judge in November 2007 the veteran acknowledged he had been working as a security guard, but claims he had notified VA he was working as a security guard, and that in the past year his health had deteriorated to such a degree that his wife had to stop working to take care of him. He was on dialysis. Paying back the debt was creating a hardship. It was noted for the record that the veteran was using a walker. Analysis. The Committee on Waivers and Compromises did not find any misrepresentation, fraud or bad faith on the part of the veteran in the creation of the debt. Waiver is not precluded on that basis. The facts do not reflect that the appellant acted in such a manner as to have intentionally sought to obtain government benefits to which he was not entitled, which is necessary for a finding of fraud, misrepresentation, or bad faith. Because it has been determined that there was no willful intent on the part of the appellant to commit fraud, misrepresent a material fact, or exercise bad faith in the creation of the overpayment that has been assessed against him, the Board turns to whether recovery of the indebtedness would be against equity and good conscience, in which case recovery of that overpayment may be waived. 38 U.S.C.A. § 5302; 38 C.F.R. § 1.963, 1.965. Upon consideration of all of the factors set out in 38 C.F.R. § 1.965, the Board finds that the collection of the debt would cause undue hardship under the veteran's current circumstances and defeat the objectives of VA's pension program. The family income of VA and SSA benefits barely covers expenses, the veteran requires dialysis, and his wife to care for him, essentially full time. Under these circumstances, the Board concludes that it would be against equity and good conscience to require the veteran to repay the debt. For that reason recovery of the overpayment of pension benefits in the amount of $9,279.00 is waived. ORDER Waiver of recovery of the overpayment of pension benefits in the calculated amount of $9,279.00 is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs