Citation Nr: 0813696	
Decision Date: 04/25/08    Archive Date: 05/01/08

DOCKET NO.  05-02 843	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance 
Center in Philadelphia, Pennsylvania

THE ISSUE

Entitlement to waiver of recovery of an overpayment of 
widow's pension benefits in the amount of $20,214.08.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Cryan, Associate Counsel




INTRODUCTION

The veteran, presently deceased, served on active duty from 
March 1944 to March 1946.  The appellant is his widow.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from an August 2004 decision by the RO's Committee 
on Waivers and Compromises (CWC) in Philadelphia, 
Pennsylvania, that denied a waiver of a pension overpayment 
in the amount of $20,214.08.


FINDING OF FACT

The evidence of record demonstrates the appellant's intent to 
seek an unfair advantage and mislead VA as to her remarriage 
after the veteran's death.


CONCLUSION OF LAW

Bad faith is demonstrated in the creation of the overpayment 
of widow's pension benefits and entitlement to waiver is 
precluded.  38 U.S.C.A. § 5302 (West 2002); 38 C.F.R. § 1.965 
(2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

The provisions of the Veterans Claims Assistance Act of 2000 
(VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a), as interpreted by the United States Court of 
Appeals for Veterans Claims (hereinafter "the Court") do not 
apply in waiver cases.  Barger v. Principi, 16 Vet. App. 132, 
138 (2002).  It is significant to note that chapter 53 of 
title 38, U.S. Code (which governs waiver requests) contains 
its own decision notice provisions.  All relevant evidence 
necessary for an equitable disposition of this appeal has 
been obtained; the appellant is not prejudiced by the 
determination below.  

VA law provides that recovery of overpayment of any benefits 
made under laws administered by VA shall be waived if there 
is no indication of fraud, misrepresentation, or bad faith on 
the part of the person, or persons having an interest in 
obtaining the waiver and recovery of the indebtedness from 
the payee who received such benefits would be against equity 
and good conscience.  38 U.S.C.A. § 5302(c) (West 2002); 38 
C.F.R. § 1.965(b) (2007).  

Bad faith is defined, generally, as unfair or deceptive 
dealing by one who seeks to gain thereby at another's 
expense, such as conduct, while not undertaken with actual 
fraudulent intent, is undertaken with an intent to seek an 
unfair advantage, with knowledge of the likely consequences, 
which results in a loss to the government.  38 C.F.R. 
§ 1.965(b).  The Court has held that the operative language 
in 38 C.F.R. § 1.965(b)(2) limits bad faith to cases in which 
there is an intent to seek an unfair advantage and that a 
mere negligent failure to fulfill a duty or contractual 
obligation is not an appropriate basis for a bad faith 
determination.  Richards v. Brown, 9 Vet. App. 255 (1996). 

Based upon the available record, the Board finds the evidence 
demonstrates the appellant intentionally misled VA as to her 
remarriage after the veteran's death.  VA records show 
entitlement to widow's pension benefits was established in 
December 1969.  The appellant's award was adjusted in 1973, 
1974, 1976, and 1978.  The letters provided at those times 
indicated that pension eligibility is income-based and that 
it was the appellant's responsibility to promptly report any 
pertinent changes.  Associated with the claims file are VA 
Forms 21-0518, Improved Pension Eligibility Verification 
Reports, signed by the appellant on October 17, 1985; October 
27, 1986; October 17, 1987; October 30, 1988; November 22, 
1989; November 24, 1990; October 15, 1991, October 24, 1992; 
October 30, 1993; and August 20, 2003, which included 
affirmative responses to the marital status question "I HAVE 
NOT REMARRIED SINCE THE VETERAN DIED (You have not married 
anyone since the veteran's death)."  The appellant signed her 
name using the veteran's last name on the VA Forms 21-0518 
dated in 1985, 1986, 1987, 1988, 1989, 1990, 1991, and 1992, 
when in fact she should have signed using her second 
husband's last name.  The appellant, in essence, certified 
that the provided information was correct.  

Information provided by The American Legion in January 2004; 
however, indicated the appellant had remarried in March 1976 
until her second husband died in January 1993.  The veteran's 
daughter (and legal power of attorney) submitted a statement 
received in June 2004 in which she confirmed that the veteran 
remarried R.L.H. in 1976 until his death in July 1993.  The 
appellant's daughter indicated that she lived out of state 
and visited the appellant during the period after the 
veteran's death in 1969 but that she was not involved in the 
appellant's personal affairs until 1994 at which time she 
came across a letter from the St. Petersburg VARO which 
stated that the appellant was in receipt of VA benefits in 
the amount of $61.00.  The letter indicated that the 
appellant should immediately notify VA if there was any 
change in her income, net worth, marital status, or number of 
dependents.  Also associated with the claims file is a letter 
dated in August 1997 in which the appellant was notified that 
the law states that her pension benefits would stop if she 
remarried.  

The question presented on the VA Forms 21-0518 was 
unambiguous and the Board finds the appellant's responses 
provided during the time period from 1985 to 2003 were 
clearly provided with a deceptive intent to seek an unfair 
advantage, with knowledge of the likely consequences.  
Additionally, as noted, the appellant's award was adjusted in 
1973, 1974, 1976, and 1978 and letters dated during that time 
period indicated that pension eligibility is income-based and 
that it was the appellant's responsibility to promptly report 
any pertinent changes.  Therefore, entitlement to waiver of 
nonservice-connected death pension overpayment is precluded 
as a result of bad faith.

When all the evidence is assembled VA is then responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with the claimant prevailing in either 
event, or whether a preponderance of the evidence is against 
the claim in which case the claim is denied.  Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 
F. 3d 1361 (Fed. Cir. 2001).  The preponderance of the 
evidence in this case is against the appellant's claim.


ORDER

The appeal is denied.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs