Citation Nr: 0814950 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 07-06 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to waiver of recovery of an overpayment of VA pension benefits calculated in the amount of $2,770.36. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The veteran served on active duty from December 1952 to December 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 decision by a VA Committee on Waivers and Compromises (Committee) which denied the veteran's claim of entitlement to a waiver of recovery of an overpayment of VA pension benefits on the basis that a timely claim for a waiver had not been filed. FINDINGS OF FACT 1. By means of letters dated in October 2002 and March 2003 sent to his care at the prison in which he was incarcerated which were not returned as undeliverable, the veteran was informed that, due to his incarceration for conviction of a felony, it was proposed that payment of his benefits would be terminated from October 2002; these letters also informed him that the proposed action would result in an overpayment. 2. By letter dated in June 2003 sent to his care at his prison address, the veteran was informed that payment of his benefits had been terminated from October 11, 2002, as previously proposed; this letter was not returned as undeliverable. 3. A letter dated in June 2003 sent to his care at the address of the prison in which he was incarcerated notified the veteran that he owed VA a debt calculated at that time in the amount of $2,782.33; this letter also informed the veteran of his right to request a waiver of recovery of this indebtedness and that he had a period of 180 days in which to request a waiver of the indebtedness; this letter was not returned as undeliverable. 4. The veteran requested a waiver of recovery of the overpayment in question, which was reduced to $2,770.36, by letter received in July 2006; there is no correspondence evidencing a specific intent to file a waiver of the debt in question within 180 days of the June 2003 letter informing him of this debt. CONCLUSION OF LAW Entitlement to a waiver of recovery of an overpayment of VA pension benefits calculated in the amount of $2,770.36 is precluded by the veteran's failure to make a timely request for a waiver. 38 U.S.C.A. § 5302(a) (West 2002); 38 C.F.R. § 1.963(b)(2) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) substantially modified the circumstances under which VA's duty to notify and assist claimants applies, and how that duty is to be discharged. See Public Law No. 106-175 (2000) (now codified at 38 U.S.C.A. §§ 5100-5103A, 5106-7 (West 2002). VA has published regulations implementing many of the provisions of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007)). See VAOPGCPREC 7-2003 (Nov. 19, 2003), as to retroactivity of the VCAA regulations. However, the VCAA and implementing regulations do not apply in waiver cases, such as the case at bar. See Barger v. Principi, 16 Vet. App. 132 (2002). According to the appropriate law and regulations, an applicant has 180 days from the date of notification of an indebtedness in order to request relief from recovery of overpayments of VA benefits. 38 U.S.C.A. § 5302(a) (West 2002); 38 C.F.R. §§ 1.963(b), 3.1(q) (2007). The 180-day period can be extended if the individual requesting a waiver demonstrates that there was a delay in the receipt of the notice as a result of an error by VA or the postal authorities or due to other circumstances beyond his control. If the requester substantiates a delay, the 180-day period shall be computed from the date of the requester's actual receipt of the notice of indebtedness. 38 C.F.R. §§ 1.963(b), 3.1(q) (2007). Historically, the veteran was granted VA pension benefits by way of a March 1990 rating decision. After VA became aware that the veteran had been convicted of a felony and sentenced to prison for 10 years starting August 12, 2002, letters dated in October 2002 and March 2003 sent to the veteran's care at the prison in which he was incarcerated which were not returned as undeliverable informed the veteran that due to his incarceration for conviction of a felony, it was proposed that payment of his benefits would be terminated from October 2002. These letters also informed the veteran that the proposed action would result in an overpayment. By letter dated in June 2003 sent to his care at his prison address, the veteran was informed that payment of his benefits had been terminated from October 11, 2002, as previously proposed. This letter was not returned as undeliverable. A letter dated in June 2003 sent to his care at the address of the prison in which he was incarcerated notified the veteran that he owed VA a debt calculated at that time in the amount of $2,782.33. This letter also informed the veteran of his right to request a waiver of recovery of this indebtedness and that he had a period of 180 days in which to request a waiver of the indebtedness. Again, this letter also was not returned as undeliverable. Examining the correspondence received from the veteran thereafter, the record reflects receipt of statements from the veteran in August and September 2003 seeking information as to why he was not receiving his pension benefits. A November 2003 response from VA to the veteran reminded him that his benefits had been terminated due to his incarceration following his felony conviction. No further correspondence from the veteran is of record until receipt in July 2006 of a statement from the veteran in which he indicated that he previously "did send a request in [f][]or the waiver . . .[b]ut I[']m not sure of the actual date in which I sent it." He requested that he be sent a "waiver form" and indicated that he would see that it was returned to VA. As indicated, in an August 2006 decision, the Committee denied the veteran's claim of entitlement to a waiver of recovery of an overpayment of VA pension benefits on the basis that because a request for a waiver was not received until the July 2006 correspondence discussed above, a timely claim for a waiver had not been filed following the June 2003 notice of the overpayment in question. Review of the evidence of record, to include the August and September 2003 correspondence referenced above, reveals no request from the veteran specifically evidencing an intent to file a waiver of the debt in question within 180 days of the June 2003 notice of the overpayment. There is a presumption of regularity that attends the administrative functions of the Government. The law presumes that the notice letters of the scheduled examinations were properly mailed and forwarded. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994), appeal dismissed, 53 F.3d 347 (Fed. Cir. 1995) (the law presumes the regularity of the administrative process "in the absence of clear evidence to the contrary"); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992); Ashley v. Derwinski, 2 Vet. App. 307, 308-9 (1992); Saylock v. Derwinski, 3 Vet. App. 394, 395 (1992). See McCullough v. Principi, 15 Vet. App. 272 (2001) (appellant's assertion that she did not recall receiving notice from originating agency that she had 180 days to request waiver of recovery of overpayment of death pension was not "clear evidence to the contrary" to rebut presumption that notice was properly mailed to her); YT v. Brown, 9 Vet. App. 195, 199 (1996) (the appellant's statement that she did not receive the November 1990 statement of the case is not the "clear evidence to the contrary" that is required to rebut the presumption of regularity that the notice was sent); Mason v. Brown, 8 Vet. App. 44, 55 (1995) ("appellant's statement of nonreceipt, standing alone, is not the type of 'clear evidence to the contrary' which is sufficient to rebut the presumption"); see also Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000) ("Government officials are presumed to carry out their duties in good faith and proof to the contrary must be almost irrefutable to overcome that presumption." Given the legal authority cited above, and the fact that there is no indication that the June 2003 notification of the debt in question, or any other notification letters, were returned as undeliverable, the Board finds the legal criteria cited above to be controlling in this case. There is also no indication that, as the veteran contended in his July 2006 correspondence, a waiver request had been previously filed by him. Thus, the request for waiver of the debt in question was not timely filed; the Board must deny the appeal based on the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430, (1994). As a result, the Board may not address the merits of the case, and may not consider factors of equity and good conscience, such as financial hardship. In making the above determination, the Board notes that it has carefully considered the contentions of the veteran with regard to the "large time lapse" in the furnishing of information by VA and his assertions that he was otherwise not properly informed of the debt in question by VA. In short, however, and as set forth above, there is no evidence to support the assertions that the veteran was not properly informed of the debt in question. As such, the claim must be denied. ORDER The request for waiver of recovery of VA pension benefits in the calculated amount of $2,770.36 is denied as not timely filed. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs