Citation Nr: 1007698	
Decision Date: 03/02/10    Archive Date: 03/11/10

DOCKET NO.  06-36 019	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Whether the Veteran's request for a waiver of recovery of 
an overpayment of nonservice-connected pension benefits in 
the amount of $39,445.34 was timely.

2.  Entitlement to a waiver of recovery of an overpayment of 
nonservice-connected pension benefits in the amount of 
$39,445.34.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

K. Gielow, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1972 to 
September 1974.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a July 2005 decision of the Fort Snelling Debt 
Management Center (DMC) of the Department of Veterans Affairs 
(VA) Regional Office (RO) in Fort Snelling, Minnesota, that 
denied a waiver of recovery of overpayment of nonservice-
connected pension benefits in the amount of $39,445.34 on the 
basis that a timely request for a waiver of overpayment of 
nonservice-connected pension benefits was not submitted.  
Jurisdiction over this case is now with the RO in Waco, 
Texas.

The Veteran testified before the undersigned Acting Veterans 
Law Judge in April 2008.  A transcript of the hearing is of 
record.

Please note this appeal has been advanced on the Board's 
docket pursuant to 38 C.F.R. § 20.900(c) (2009).  38 U.S.C.A. 
§ 7107(a)(2) (West 2002).

The issue of entitlement to a waiver of recovery of an 
overpayment of nonservice-connected pension benefits in the 
amount of $39,445.34 is addressed in the REMAND portion of 
the decision below and is REMANDED to the RO via the Appeals 
Management Center (AMC) in Washington, DC.


FINDINGS OF FACT

1.  In September 1997, the appellant was awarded a 
nonservice-connected pension, effective August 1996.

2.  As early as January 2001, the RO learned that the Veteran 
had been awarded Social Security Administration (SSA) 
benefits in 2000. 

3.  In June 2004 and August 2004, the RO attempted to provide 
the appellant with notice of his indebtedness, based upon his 
receipt of SSA benefits, and waiver rights.  

4.  The Veteran did not receive these notification letters; 
there is clear and convincing evidence to rebut the 
presumption of regularity.

5.  In June 2005, the appellant sent to the RO a request for 
a waiver.


CONCLUSION OF LAW

A timely request for waiver of recovery of overpayment of 
nonservice-connected pension benefits was filed by the 
appellant.  38 U.S.C.A. § 5302(a) (West 2002); 
38 C.F.R. § 1.963(b), 20.305 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duty to Notify and Assist

VA has specified duties to notify a claimant as to the 
information and evidence necessary to substantiate a claim 
for VA benefits.  The Board has considered whether further 
development and notice under the Veterans Claims Assistance 
Act of 2000 (VCAA) or other law should be undertaken.  

In this regard, the Board observes that Chapter 53 of Title 
38 of the United States Code governs claims for waiver of 
recovery of a debt owed to VA and provides specific notice 
and duty to assist provisions.  The provisions of the VCAA, 
38 U.S.C.A. § 5100 et seq. (West 2002 & Supp. 2009), on the 
other hand, are relevant to a different chapter of Title 38.  
See Barger v. Principi, 16 Vet. App. 132 (2002) (the duties 
specified in the VCAA are not applicable to requests for a 
waiver of overpayment).  Accordingly, the provisions of the 
VCAA do not apply to this appeal.  In any event, in light of 
the favorable decision as to the question of whether the 
Veteran filed a timely waiver of recovery of overpayment, any 
deficiency as to VA's duty to notify is deemed nonprejudicial 
and need not be further considered.  

Timeliness of Waiver Request

By way of history, the record reveals that the appellant was 
awarded nonservice-connected pension in September 1997.  
However, as early as January 2001, the RO became aware that 
the Veteran was awarded SSA benefits in 2000.  In light of 
his SSA income, the RO determined that an overpayment had 
been created.

The Veteran is appealing a July 2005 decision issued by the 
Fort Snelling Debt Management Center (DMC) that determined 
that he failed to submit his request for a waiver in a timely 
manner.  It the Veteran's contention that he did not receive 
notification of the $39,445.34 overpayment and waiver rights, 
and, therefore, his June 2005 request for a waiver should be 
considered timely.

Under the applicable regulations, a request for waiver of a 
debt, other than for loan guaranty, shall only be considered 
if made within 180 days following the date of a notice of the 
indebtedness to the debtor.  The 180-day period may be 
extended if the individual requesting waiver demonstrated to 
the Chairperson of the Committee 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.  
See 38 C.F.R. § 1.963(b) (2009); see also 38 U.S.C.A. 
§ 5302(a) (West 2002).

According to the statement of the case, dated November 2006, 
the Veteran was provided with notification letters in June 
2004 and August 2004 informing him of his overpayment and 
advising him of his waiver rights.  The Board notes there is 
a "presumption of regularity" under which it is presumed 
that government officials have properly discharged their 
official duties.  Clear evidence to the contrary is required 
to rebut the presumption of regularity.  Ashley v. Derwinski, 
2 Vet. App. 307 (1992).  While Ashley dealt with regularity 
of procedures at the Board, in Mindenhall v. Brown, 7 Vet. 
App. 271 (1994), the United States Court of Appeals for 
Veterans Claims also applied this presumption of regularity 
to procedures at the RO.

Here, the Board finds that "presumption of regularity" is 
rebutted by clear and convincing evidence that the Veteran 
did not receive the notification letters.  As an initial 
matter, there no copies of the notification letters in the 
claims file to confirm the date and content of the letters.  
Further, although the Chief of Operations for the DMC, in an 
August 2006 VA Memorandum, indicated that the June 2004 and 
August 2004 notification letters were not returned due to an 
incorrect address, records from the CAROLS database expressly 
noted that both June letters were returned as having a 
"bad" address.  Moreover, in an April 2008 hearing before 
the undersigned Acting Veterans Law Judge, the Veteran 
testified that he did not receive the notification letters 
and that the notices were returned as undeliverable.  See 
Hearing Transcript (T.) at p. 2, 9.  In light of his 
competent testimony, the absence of any of these crucial 
letters from the claims file, and system indicators revealing 
a return of the June 2004 letters due to an incorrect 
address, the Board finds that the presumption of regularity 
is rebutted with respect to VA furnishing notice to the 
appellant of his right to request a waiver.  

In attempting to ascertain exactly when the Veteran received 
notice of the $39,445.34 overpayment, the Board notes that he 
sent in a waiver request in June 2005; therefore, he must 
have received notification of the overpayment prior to that 
time.  However, there is no definitive documentation in the 
claims file to determine the date that actual notice was 
provided.  Instead, the Board relies on the Veteran's April 
2008 testimony asserting that he reported to the RO as soon 
as he received the notification letter.  T. at p. 10-11.  
Accordingly, on review of the record and resolving all doubt 
in the Veteran's favor, the Board finds that the appellant's 
June 2005 waiver request was timely.  


ORDER

The Veteran's request for a waiver of recovery of an 
overpayment of nonservice-connected pension benefits in the 
amount of $39,445.34 is timely.


REMAND

Having decided that the appellant has submitted a timely 
waiver request, the appeal must be returned to the DMC/RO/AMC 
so that a determination can be made as to whether a waiver of 
overpayment should be granted.  As the Veteran's waiver 
request was previously denied as untimely received, the issue 
of entitlement to waiver of recovery of overpayment of 
nonservice-connected pension benefits in the amount of 
$39,445.34 is remanded for initial adjudication by the agency 
of original jurisdiction.  Further appellate review by the 
Board with regard to the appellant's waiver claim must be 
deferred pending formal adjudication of this issue.  While 
some of the assessed overpayment in question may have been 
recouped, in accordance with Franklin v. Brown, 5 Vet. App. 
190 (1993), VA should consider the question of waiver of the 
entire overpayment in the calculated amount of $39,445.34.

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's 
docket pursuant to 38 C.F.R. § 20.900(c) (2009).  Expedited 
handling is requested.)

1.  The DMC/RO/AMC should request an up-
to-date financial status report listing 
all monthly income, monthly expenses, and 
assets (to include bank account 
information) from the Veteran.  

2.  Thereafter, the Committee on Waiver of 
Indebtedness should adjudicate the 
appellant's request for a waiver of 
recovery of overpayments in the amount of 
$39,445.34 with express consideration of 
the provisions of 38 C.F.R. §§ 1.962, 
1.963, 1.963(a), and 1.965(a) (2009), and 
each element of the of equity and good 
conscience standard.  A formal, written 
record of the Committee's decision should 
be prepared and incorporated into the 
claims folder.

3.  If the determination remains 
unfavorable to the Veteran, he should be 
provided with a supplemental statement of 
the case that addresses all relevant 
actions taken on the claim for benefits, 
to include a summary of the evidence and 
applicable law and regulations considered.  
The Veteran should be given an opportunity 
to respond, and the case should be 
returned to the Board for appellate review 
as appropriate.

The appellant has the right to submit additional evidence and 
argument on the matter the Board has remanded.  Kutscherousky 
v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).




______________________________________________
ROBERT C. SCHARNBERGER 
Acting Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs