Citation Nr: 0812986 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 04-17 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether a request for waiver of recovery of an overpayment of Dependency and Indemnity Compensation (DIC) benefits in the calculated amount of $112,808.63 was timely filed. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from October 1966 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) decision of the Committee on Waivers and Compromises (Committee) dated in October 2003, which denied waiver of recovery of an overpayment in the calculated amount of $112,808.63, on the basis that the waiver request was not timely filed. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran died in August 1987. In December 1987, service connection for the cause of the veteran's death was granted, and the appellant, who was his surviving spouse, began receiving DIC benefits. She remarried in October 1999. The Board finds that additional notification and assistance is required prior to an appellate decision in this case. In this regard, although the Court has held that the notice and duty to assist provisions of the Veterans Claims Assistance Act of 2000 (see 38 U.S.C.A. §§ 5102, 5103, 5103A) do not apply to waiver claims, the Court also observed that the statute pertaining to waiver claims contained its own notice provisions, which must be satisfied. See Barger v. Principi, 16 Vet.App. 132 (2002); see 38 U.S.C.A. § 5302 (West 2002). Evidence in the file shows that the overpayment was created as the result of a May 2002 award action, which retroactively terminated the appellant's DIC benefits effective in November 1993, on the basis that she did not return a request for verification of her marital status. She was notified of the debt in June 2002. However, her waiver request was not received until August 2003, and her claim was denied on the basis that a waiver request was not timely filed. The law requires that a request for waiver be filed within 180 days following the date of notice of the debt. If the request for waiver is not timely filed, it cannot be considered by VA. However, the 180 day period may be extended if the individual requesting waiver demonstrated to the COWC that, as a result of an error by either the 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). 38 U.S.C.A. § 5302(a); 38 C.F.R. § 1.963(b)(2). In this case, the appellant, whose August 2003 waiver request contained a new address, contends that the mail service was very poor at her prior address, with frequent misdirections. In addition, she contends that mail was sometimes stolen from mailboxes by neighborhood children. There is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). This presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet.App. 307 (1999); Mindenhall v. Brown, 7 Vet. App. 271 (1994). Thus, it is presumed that the mail is properly delivered, and a claimant's statement alone is not the type of clear evidence to the contrary which would be sufficient to rebut the presumption of regularity. Id. However, she may submit evidence in support of her contentions, such as a written statement from the Postmaster regarding delivery complaints during the relevant time period, and/or statements from neighbors in that area who also noticed mail delivery problems. In addition, the date she moved from Broken Arrow to Coweta should be ascertained. Thus, the appellant must be provided an opportunity to submit information corroborating her claim of non-receipt of the notice. The appellant has also challenged the validity of the debt. In her substantive appeal, she stated that she did not remarry until October 1999, and so she should be entitled to DIC benefits up until that date. This raises the issue of the validity of the debt, which is implicit in the issue of waiver. See Schaper v. Derwinski, 1 Vet.App. 430 (1991). The validity of the debt is not subject to the same 180-day time limit as the waiver request. However, it appears as if award action may have been taken in May 2004 to reinstate the veteran's DIC benefits for the period from November 1993 to October 1999. There is no evidence of notification of this award action, however, or of the effect on the amount of the overpayment. Since this action directly affects the amount of the overpayment at issue in this appeal, the matter must be clarified prior to a decision on the timeliness issue. Finally, the most recent correspondence sent to the appellant by the Board, in December 2007, was returned as undeliverable. However, in the normal course of events, it is the claimant's burden to keep VA apprised of his or her whereabouts. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993) (noting that if the claimant does not keep VA informed, "there is no duty on the part of the VA to turn up heaven and earth" to find him or her). The RO should, however, ensure that the most recent address of record is used. Accordingly, the case is REMANDED for the following action: 1. Ensure that the most recent address of record is used in all correspondence sent to the appellant. 2. Inform the appellant that although her waiver request was not filed within 180 days of the June 2002 notification to her, the period may be extended if she demonstrates that, as a result of an error by either the VA or the postal authorities, or due to other circumstances beyond her control, there was a delay in her receipt of the notification of indebtedness beyond the time customarily required for mailing (including forwarding). 38 U.S.C.A. § 5302(a); 38 C.F.R. § 1.963(b)(2). Tell her that to establish such a delay, she must submit evidence supporting her contention that she did not receive notification, such as: * A statement from the Broken Arrow Postmaster regarding complaints of non- delivery of mail during the relevant time period (June 2002 to June 2003); * Statements from former neighbors from that location, regarding their experiences with non-delivery of mail during the relevant time period; and * Evidence showing exactly when she moved from Broken Arrow, along with an explanation for any delay in reporting the change of address to the VA. 3. An audit of the appellant's account should be prepared, which shows the calculation of the overpayment, and describes the basis of the calculation, in particular, the adjustment to the amount of the overpayment resulting from the May 1, 2004, award action. The appellant should be notified of this adjustment, along with notification of her appellate rights regarding an appeal of the validity of the debt. Appropriate action should be taken based on her response, if any. 4. Thereafter, review the issue of whether the request for waiver was timely filed. If the decision is adverse to the appellant, she and her representative should be furnished an appropriate supplemental statement of the case, which includes citation to the pertinent part of 38 C.F.R. §1.963(b)(2), cited above, and a discussion as to why the evidence does not satisfy the requirements. After affording an opportunity for response, the case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).