Citation Nr: 0827537	
Decision Date: 08/14/08    Archive Date: 08/22/08

DOCKET NO.  07-09 650	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, 
Colorado


THE ISSUE

Entitlement to waiver of recovery of an overpayment of 
disability compensation benefits in the amount of $6,220.00.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Barone, Counsel




INTRODUCTION

The veteran had active service from January 1966 to January 
1979.

This matter comes before the Board of Veterans' Appeals 
(Board) from an April 2006 decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) Committee on 
Waivers and Compromises (Committee) which denied waiver of an 
overpayment in the amount of $6,220.00.

The veteran was scheduled to testify before the undersigned 
Veterans Law Judge in June 2008, but failed to appear for his 
hearing.


FINDINGS OF FACT

1.  Overpayment in the amount of $6,220.00 resulted solely 
from the actions of the veteran; there was no fault on the 
part of VA.

2.  The recovery of the VA benefits would not nullify the 
objective for which benefits were intended.

3.  The veteran did not change his position to his detriment, 
and there was no reliance on these VA benefits that resulted 
in relinquishment of a valuable right or incurrence of a 
legal obligation.

4.  Financial hardship is not demonstrated.


CONCLUSION OF LAW

The recovery of the overpayment of VA disability compensation 
benefits in the amount of $6,220.00 is not against equity and 
good conscience and, therefore, is not waived.  38 U.S.C.A. 
§§ 5107, 5302(a) (West 2002 & Supp. 2007); 38 C.F.R. §§ 
1.963(a), 1.965(a) (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The essential facts in this case have been fully developed 
and are not in dispute.  The notice and duty to assist 
provisions of the Veterans Claims Assistance Act (VCAA) of 
2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) do not apply 
to claims involving waiver of recovery of overpayments.  See 
Barger v. Principi, 16 Vet. App. 132, 138 (2002).  
Furthermore, the VCAA has no effect upon an appeal where the 
law, and not the underlying facts or development of the 
facts, is dispositive in the matter.  Manning v. Principi, 16 
Vet. App. 534 (2002).  Therefore, while the record before the 
Board does not reflect that the appellant was specifically 
notified of the provisions of the VCAA, such notice is not 
required under governing law.  Accordingly, the Board 
therefore finds that no further action is necessary under the 
VCAA at this time, and that the case is ready for appellate 
review.

In any event, letters from the RO to the veteran have 
requested pertinent information.  Although such letters did 
not reference VCAA, they did request that he submit critical 
information that could help support his appeal.  In essence, 
the intent of VCAA has been met. 

Factual Background

Review of the record reflects that in January 2001, the 
veteran submitted VA Form 21-686c, Declaration of Status of 
Dependents, naming G.B.Y. as his spouse and noting that they 
had been married in September 1997.  He also indicated that 
he had been divorced from C.N.K. in January 1998.  He 
included copies of the September 1997 marriage certificate 
and documents pertinent to his divorce from C.N.K.  

In March 2001 the RO wrote to the veteran and indicated that 
an overpayment had been created.  It explained that the 
veteran had been divorced in January 1998 but that additional 
benefits had been paid for C.N.K. from that time until 2001, 
when he notified VA that he had been divorced.  As such, the 
veteran's benefits were reduced effective February 1998 due 
to the loss of a dependent spouse.

In June 2001 the RO wrote to the veteran and indicated that 
at the time of his marriage to G.B.Y., he was still married 
to C.N.B., and that an overpayment had resulted when he was 
divorced from C.N.B. and failed to report such to VA.

In June 2001 the veteran again certified that G.B.Y. was his 
spouse, and that they had been married in September 1997.  He 
also named a daughter.

Financial Status Reports received by the RO in June and 
August 2001 include income from the veteran's reported 
spouse.  The veteran also requested a waiver of the 
overpayment.

In a September 2001 letter, the RO acknowledged that the 
veteran had requested that G.B.Y. be added to his benefits.  
He was asked for information regarding common law marital 
status.

In October 2001 the veteran submitted VA Form 21-4171, 
Supporting Statement Regarding Marriage, completed by a 
friend.  The friend provided information regarding the 
veteran's relationship with G.B.Y.

In November 2001 the RO's Committee on Waivers and 
Compromises denied the veteran's waiver request.  

In a January 2002 letter, the RO indicated that additional 
benefits had been included for the veteran's spouse and 
child.  He was advised that he should tell VA immediately if 
there was any change in the status of his dependents in order 
to avoid creation of an overpayment.

In November 2005 the veteran submitted a questionnaire 
regarding the status of his dependents.  He listed his 
daughter, but indicated that he was not married.  He did not 
include information regarding his relationship with G.B.Y.  

In a December 2005 letter, the RO proposed that G.B.Y. would 
be removed from the veteran's award effective the date she 
was added.  The letter noted that the veteran had not 
submitted dependency information since October 2001.

In December 2005 the veteran responded that he had visited 
the RO in April 2005 and at that time, told VA that he was 
not legally married.  He asserted that he should not be 
penalized.

The veteran requested waiver of the overpayment in the amount 
of $6,220.00 in January 2006.

In April 2006, the Committee on Waivers and Compromises 
denied the veteran's request.  In doing so, the Committee 
found no evidence of any fraud, misrepresentation, or bad 
faith.  However, the Committee found that the veteran was at 
fault and that unjust enrichment would result if he was not 
made to repay the overpayment.

In May 2007 the RO requested that the veteran provide 
information concerning his purported common law marriage.  In 
September 2007 the veteran was requested to provide 
information that might establish G.B.Y. as his common law 
wife.  The veteran did not respond to either of these 
letters.

Analysis

As noted, the Committee determined that there was no fraud, 
misrepresentation, or bad faith on the veteran's part with 
respect to the creation of the overpayment at issue.  The 
Board agrees.

In cases where there is no fraud, misrepresentation, or bad 
faith on the veteran's part with respect to the creation of 
the overpayment at issue, and, therefore, waiver is not 
precluded pursuant to 38 U.S.C.A. § 5302(a), in order to 
dispose of the matter on appeal, the Board must determine 
whether recovery of the indebtedness would be against equity 
and good conscience, thereby permitting waiver under 38 
U.S.C.A. § 5302(a) and 38 C.F.R. §§ 1.963(a), 1.965(a).  The 
pertinent regulation in this case provides that the standard 
of "equity and good conscience" will be applied when the 
facts and circumstances in a particular case indicate a need 
for reasonableness and moderation in the exercise of the 
Government's rights.  38 C.F.R. § 1.965(a).  

The elements of equity and good conscience are as follows: 
(1) fault of debtor, where actions of the debtor contribute 
to creation of the debt; (2) balancing of faults, weighing 
fault of debtor against VA fault; (3) undue hardship, whether 
collection would deprive debtor or family of basic 
necessities; (4) defeat the purpose, whether withholding of 
benefits or recovery would nullify the objective for which 
benefits were intended; (5) unjust enrichment, failure to 
make restitution would result in unfair gain to the debtor; 
(6) changing position to one's detriment, reliance on VA 
benefits results in relinquishment of a valuable right or 
incurrence of a legal obligation.

The first and second elements pertain to the fault of the 
debtor versus the fault of the VA.  The veteran is at fault 
in this case.  He was notified that he was being paid for a 
dependent spouse in January 2002, and that he should advise 
VA of any change in his dependents.  As such, the veteran was 
on notice that an overpayment might arise based on his 
failure to timely inform VA of changes in the status of his 
dependents.  Moreover, the veteran had been previously 
assessed with an overpayment when he failed to report his 
divorce from C.N.B.  In essence, he had knowledge that an 
overpayment might result from failure to report a change in 
the status of his dependents.

In regard to whether collection would defeat the purpose of 
the benefit and whether failure to collect would cause unjust 
enrichment to the debtor, the Board finds that collection 
would not defeat the purpose of the benefit.  The veteran was 
in receipt of additional benefits for a dependent spouse.  
However, in November 2005, he certified that he was not 
married.  The veteran therefore received benefits for a 
dependent spouse despite the fact that he was not married, 
and, as such, he was unjustly enriched.  There is no 
indication that the veteran's reliance on VA benefits 
resulted in relinquishment of another valuable right.  Thus, 
this element of equity and good conscience is not in the 
veteran's favor.

As to whether recoupment of those benefits would defeat the 
purpose of the benefit, it is noted that the purpose of 
paying a veteran additional benefits for dependents is to 
ensure their support.  The veteran has certified that he was 
not legally married to G.B.Y.  There is no indication that 
recoupment would affect his ability to provide support to any 
dependent.  Thus, this element of equity and good conscience 
is not in the veteran's favor.

The Board has also considered whether the appellant would 
experience undue financial hardship if and when forced to 
repay the debt at issue.  Although the veteran has reported 
expenses that exceed his income, he has substantial income, 
and the Board concludes that recoupment of the debt would not 
impede the veteran's ability to obtain basic necessities.  
Therefore, the Board does not find financial hardship.

Therefore, in viewing the elements of equity and good 
conscience, the Board concludes that the negative evidence 
outweighs the positive evidence and that the facts in this 
case do not demonstrate that the recovery of the overpayment 
is against equity and good conscience.


ORDER

A waiver of the recovery of an overpayment of disability 
compensation benefits in the amount of $6,220.00 is denied.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs