Citation Nr: 0811167	
Decision Date: 04/04/08    Archive Date: 04/14/08

DOCKET NO.  05-29 617	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, 
Illinois


THE ISSUE

Whether the request for waiver of recovery of overpayment 
indebtedness in the calculated amount of $8,843 was timely.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

W. Yates, Counsel




INTRODUCTION

The veteran served on active duty from August 1948 to August 
1953.  He passed away in April 1992, and the appellant is his 
surviving spouse.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a February 2004 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Chicago, Illinois.


FINDINGS OF FACT

1. The appellant was notified of the overpayment by a letter 
dated November 10, 1997.

2. The appellant's request for a waiver was received on 
September 11, 2003.


CONCLUSION OF LAW

The appellant's request for waiver of the overpayment in the 
calculated amount of $8,843 was not timely filed, and a 
waiver may not be granted. 38 U.S.C.A. § 5302(b) (West 2002); 
38 C.F.R. § 1.964(e) (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The issue on appeal in this case is whether the appellant has 
submitted a timely request for waiver of recovery of an 
overpayment of death pension benefits in the calculated 
amount of $8,843. 

In this case, VCAA notice is not required because the issue 
presented involves a claim for waiver of recovery of 
overpayment of VA benefits.  See Barger v. Principi, 16 Vet. 
App. 132, 138 (2002) (The notice and duty to assist 
provisions of the VCAA do not apply to chapter 53 waiver of 
recovery matters, as chapter 53 already contains its own 
notice provisions.  The VCAA provisions are relevant to a 
different chapter of title 38, i.e., Chapter 51, and do not 
apply to waiver matters.).

Under the applicable regulations, a request for waiver of a 
debt, other than for loan guaranty, shall only be considered 
if made within 180 days following the date of a notice of the 
indebtedness to the debtor. The 180 day period may be 
extended if the individual requesting waiver demonstrates to 
the Chairperson of the Committee 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 
C.F.R. § 1.963(b); see also 38 U.S.C.A. § 5302(a) (West 
2002).

In this case, the appellant was notified by letter, dated in 
August 1997, of a proposed reduction in her monthly VA death 
pension benefits, effective January 1, 1996, based upon 
information received that she was receiving benefits from the 
Social Security Administration (SSA).  In response to this 
letter, the appellant submitted a copy of her original SSA 
award notice.

In October 1997, the appellant was notified by letter, that 
her monthly VA death pension benefits were reduced, effective 
January 1, 1996.  The appellant was also notified in this 
letter that the adjustment in benefits had resulted in an 
overpayment of benefits and that she would be notified 
shortly of the exact amount of the overpayment.

On November 11, 1997, the appellant was notified of the 
overpayment indebtedness in the amount of $8,843, the right 
to request a waiver, and the 180 day time limit for 
requesting a waiver.

In March 1998, the appellant was notified of the termination 
of her VA death pension benefits, effective January 1, 1997, 
due to her SSA income.

The appellant's request for waiver of overpayment was 
received on September 11, 2003.  Review of the claims file 
shows no documents which could be construed as a request for 
waiver prior to September 11, 2003.

By a decision dated in February 2004, the RO denied the 
veteran's request for waiver of recovery of an overpayment on 
the basis of the untimely waiver request. 

Ultimately, the evidence of record shows that the appellant's 
request for waiver of overpayment was not received until 
September 11, 2003, more than five years subsequent to the 
November 1997 letter notifying the appellant of the 
overpayment and informing her of her right to request a 
waiver.  In addition, in a letter, dated in August 2005, the 
appellant acknowledged receiving notice of the overpayment in 
1997.  

The regulations cited above note that such a request must be 
made within 180 days of the date of that notice.  Thus, the 
appellant's request for waiver of overpayment is not timely, 
and as a matter of law, must be denied.

As the appellant's waiver was not timely received, the 
preponderance of the evidence is against his claim. As such, 
the benefit of the doubt doctrine is inapplicable, and the 
claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990).


ORDER

The veteran's request for waiver of recovery of overpayment 
indebtedness in the amount of $8,843 was not timely.  The 
appeal is denied.



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs