Citation Nr: 0814803 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 06-07 276A ) 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 pension overpayment in the calculated amount of $8,270. ATTORNEY FOR THE BOARD Daniel Markey, Associate Counsel INTRODUCTION The veteran served on active duty from October 1968 to July 1972. This appeal to the Board of Veterans Appeals (Board) is from a June 2005 decision of the Committee on Waivers and Compromises of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania. FINDINGS OF FACT 1. By letter mailed to his address of record in December 2002, the veteran was notified of an overpayment of pension benefits in the amount of $8,270; attached to this notice was information advising the veteran of his right to request waiver of recovery of the debt within 180 days. 2. The veteran's request for waiver of recovery of the overpayment was received by the RO in May 2005. CONCLUSION OF LAW The veteran's request for a waiver of recovery of an overpayment of nonservice-connected pension benefits in the amount of $8,270 was not timely filed. 38 U.S.C.A. § 5302(a) (West 2002); 38 C.F.R. § 1.963(b) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) and the pertinent implementing regulation do not apply in waiver cases because the statutory right to request waiver of recovery of indebtedness within Chapter 53 of Title 38 of the United States Code contains its own notice provisions. See Lueras v. Principi, 18 Vet. App. 435 (2004) citing Barger v. Principi, 16 Vet. App. 132 (2002); see also 38 U.S.C.A. § 5302 (West 2002). Moreover, the pertinent facts in this case are not in dispute and the law is dispositive. Consequently, there is no additional evidence that could be obtained to substantiate the veteran's claim. Analysis A request for waiver of recovery of an indebtedness resulting from a non loan guarantee indebtedness shall only be considered: (1) if it is made within two years following the date of a notice of the indebtedness issued on or before March 31, 1983, by VA to the debtor, or (2) except as otherwise provided herein, if it is made within 180 days following the date of a notice of indebtedness issued on or after April 1, 1983, by VA to the debtor. The 180 day period may be extended if the individual requesting 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 C.F.R. § 1.963(b). See also 38 U.S.C.A. § 5302(a). In correspondence received in February 2005, the veteran contends that waiver of recovery of the pension overpayment should be granted because he has insufficient income to repay the debt and his now deceased brother had previously assumed responsibility for the veteran's debts. The pertinent facts are not in dispute and the law is dispositive. The record shows that in September 2000, the veteran was awarded pension benefits, effective November 1999. The award amount was based on the veteran having no reported income. The overpayment at issue in this appeal resulted from the veteran's failure to inform VA of a change in his income. In a December 2002 letter from VA's Debt Management Center in St. Paul, Minnesota, the veteran was informed of the overpayment. In this letter he was also informed that if he desired to request a waiver of recovery of the overpayment, he must do so in writing and within 180 days. This letter was sent to his address of record. There is no indication in the record or contention on the veteran's part that he did not receive this letter shortly after it was mailed. The record also reflects and the veteran does not dispute that his request for a waiver of recovery of the overpayment was not submitted until 2005, long after the expiration of the 180-day period for submitting the request. Accordingly, this claim will be denied because it is without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER As a timely claim for waiver of recovery of an overpayment of pension benefits in the calculated amount of $8,270 was not received, the benefit sought on appeal is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs