Citation Nr: 0812272 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-38 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether there was a timely request for waiver of recovery of an overpayment of compensation benefits in the calculated amount of $15,063.60. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Parker, Counsel INTRODUCTION The veteran served on active duty from June 1979 to October 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 administrative decision of the Committee on Waivers and Compromises (Committee) decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which found that the veteran's request for waiver of recovery of an assessed overpayment of compensation benefits had not been filed within 180 days of a July 4, 2003 notice of indebtedness and the right to request waiver of overpayment in the calculated amount of $15,063.60. The veteran requested a hearing before a Veterans Law Judge at the RO (Travel Board hearing); such hearing was scheduled for May 15, 2007; and the veteran failed to appear for the hearing. FINDINGS OF FACT 1. The July 4, 2003 notice of compensation indebtedness in the amount of $15,063.60 was mailed to the veteran's home address and the last known address of record; and the veteran actually received this notice letter. 2. The veteran's request for waiver of recovery of the assessed overpayment of compensation benefits in the calculated amount of $15,063.60 was received by VA on May 27, 2004. CONCLUSION OF LAW The appellant's request for waiver of recovery of an overpayment of compensation benefits in the calculated amount of $15,063.60 was not timely. 38 U.S.C.A. § 5302 (West 2002 & Supp. 2007); 38 C.F.R. § 1.963 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance The United States Court of Appeals for Veterans Claims (Court) has held that the notice and duty to assist requirements of 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007) and 38 C.F.R. § 3.159 (2007) do not apply to a claim for waiver of recovery of an overpayment. The Court also observed that the statute pertaining to waiver claims, 38 U.S.C.A. § 5302, includes its own notice procedures. Barger v. Principi, 16 Vet. App. 132 (2002). In addition, notice and duty to assist provisions have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-43 (2002). See also Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004. Timeliness of Waiver Application Under the applicable criteria, a request for waiver of an indebtedness shall only be considered if it is made within 180 days following the date of a notice of indebtedness by VA to the debtor. The 180 day period may be extended if the individual requesting a waiver demonstrates to the Chairperson of the Committee on Waivers and Compromises that, as a result of an error by either VA or the postal authorities, or due to other circumstances beyond the debtor's control, there was a delay in such individual's receipt of the notification of indebtedness beyond the time customarily required for mailing (including forwarding). If the requester does substantiate that there was such a delay in the receipt of the notice of indebtedness, the Chairperson shall direct that the 180-day period be computed from the date of the requester's actual receipt of the notice of indebtedness. 38 U.S.C.A. § 5302(a); 38 C.F.R. § 1.963(b). In this case, the veteran was in receipt of combined disability compensation of 40 percent from 1996. Through prison matching, VA learned that the veteran was in felony incarceration from May 26, 1999. In letters remailed on June 20, 2000 and mailed in March 20, 2003, VA notified the veteran that, because of his felony incarceration over 60 days, there would be a reduction of compensation benefits to the 10 percent level, effective in July 26, 1999, following the 61st day of felony incarceration. A June 19, 2003 reduction notice letter advised the veteran that VA had reduced compensation benefits to the 10 percent level while he was incarcerated, and that the reduction was effective from July 1999. The July 4, 2003 notice of compensation indebtedness in the amount of $15,063.60 was mailed to the veteran's home address and the last known address of record. The appellant's May 2004 correspondence shows actual receipt of the July 4, 2003 letter, as it specifically references receipt of the July 4, 2003 letter informing him of the $15,063.60 overpayment. Following receipt of the notice of compensation indebtedness, the veteran's application for waiver of recovery of the assessed overpayment of compensation benefits in the calculated amount of $15,063.60 was received by VA on May 27, 2004. After a review of the record, the Board finds that the appellant's May 27, 2004 request for waiver of recovery of an overpayment of compensation benefits was received by VA more than 180 days after the July 4, 2003 notice to the appellant of compensation indebtedness. The veteran's assertions in his substantive appeal that equitable tolling should apply with regard to the 180 days time limit for filing a request for waiver of overpayment are without basis in the facts of this case. The July 4, 2003 VA Debt Management Center specifically advised the veteran that he had "the right to dispute the debt and the right to request waiver," including enclosures that more specifically advised of the right and procedures for requesting waiver of overpayment. In his substantive appeal, the veteran acknowledged that the July 4, 2003 notice was sent to the last known address that he himself had given to VA, which was his permanent home address, and that his mail was delivered to him in prison. Moreover, the veteran's May 2004 letter shows that he actually received the July 4, 2003 notice letter. His substantive appeal reflects that he actually received the July 4, 2003 letter on about August 15, 2003, which means the veteran still had over four months from the August 15, 2003 date of actual receipt in which to submit any correspondence to VA that could have served as a request for waiver of overpayment. The veteran's assertions in his notice of disagreement and substantive appeal that personal mental health maladies were the reason he did not "address this matter in a more timely matter" and "was mentally unable to address the issue of an overpayment due to depression" do not provide any legal basis for finding that the otherwise competent veteran did not receive the notice, that he did not understand the notice and right to appeal, or that for an entire 180 day period he was incapable of corresponding or submitting even the most basic response indicating a desire for waiver of overpayment. The veteran's May 2004 correspondence and specific information submitted reflects the veteran's actual knowledge of VA correspondence based on incarceration since 2000, demonstrates his clear understanding of the questions associated with the overpayment debt that include references to specific correspondence, specific actions, and detailed dollar amounts, and that the veteran recollects his notice to VA of change of address. In this case, the veteran also had both presumed and actual notice of the very minimal filing requirements to request waiver of overpayment; the appellant was not diligent in pursuing his rights between July 4, 2003 and May 27, 2004, as indicated by the fact that, while he had actually received the VA notice of debt, the right to dispute, and the manner to dispute the debt, he took no actions including no expression of any kind to VA of disagreement with the overpayment debt; the appellant in this case was not in fact ignorant, but was well informed of the overpayment debt and the waiver filing requirements. For these reasons, the Board finds that the provisions for equitable tolling of the 180 day requirement for filing request for waiver of overpayment do not arise. The veteran's application for waiver of recovery of the assessed overpayment of compensation benefits in the calculated amount of $15,063.60 was received on May 27, 2004, which was more than 180 days after the July 4, 2003 notice of compensation indebtedness, and is more than four months after the veteran demonstrated actual receipt of notice of the July 4, 2003 letter content and notice, which included specific notice about the time limits and procedures for requesting waiver of overpayment. For these reasons, the Board finds that the appellant's May 2004 request for waiver of recovery of an overpayment of compensation benefits in the calculated amount of $15,063.60 was not timely. 38 U.S.C.A. § 5302; 38 C.F.R. § 1.963. The United States Court of Appeals for Veterans Claims has held that, in claims such as this, "where the law and not the evidence is dispositive, the claim should be denied or the appeal to the BVA terminated because of the absence of legal merit or the lack of entitlement under the law." Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The request for waiver of recovery of an overpayment of compensation benefits in the calculated amount of $15,063.60 was not timely received and the appeal is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs