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