Citation Nr: 1134858 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 06-01 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether a request for waiver of recovery of an overpayment of pension benefits in the amount of $16,310.00 was received in a timely manner. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to January 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 decision by the Committee on Waivers and Compromises (Committee) at the St. Petersburg, Florida, Regional Office (RO). FINDINGS OF FACT 1. The VA Debt Management Center sent an October 2004 letter to the Veteran, notifying him that an overpayment had been created in the total amount of $16,310.00 and that he had the right to dispute the amount of the debt or request a waiver of recovery of the indebtedness within 180 days. 2. The Veteran's request for a waiver of recovery of the $16.310.00 indebtedness was received in June 2005, which is more than 180 days after the October 2004 notification letter. CONCLUSION OF LAW The Veteran's request for waiver of recovery of an overpayment indebtedness in the amount of $16,310.00 was not timely filed. 38 U.S.C.A. § 5302 (West 2002); 38 C.F.R. § 1.963 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matter: Duty to Assist Regarding the duties to assist and notify, the Board notes that a decision by the United States Court of Appeals for Veterans Claims (Court) has held that the notice and duty to assist provisions of the Veterans Claims Assistance Act of 2000 (see 38 U.S.C.A. §§ 5103, 5103A) do not apply to waiver claims. Barger v. Principi, 16 Vet. App. 132, 138 (2002). In reaching this decision, the Court observed that the statute pertaining to waiver claims, 38 U.S.C.A. § 5302, contains its own notice provisions. This statute requires that a payee be notified of his right to apply for a waiver, and a description of the procedures for submitting the application. 38 U.S.C.A. § 5302(a). In addition, by regulation, it is required that, when a debt results from an individual's participation in a benefits program, the individual must be informed of the exact amount of the debt, and the collection methods to be employed. 38 C.F.R. § 1.911(d). The individual must also be notified of his rights and remedies, specifically, that he may informally dispute the debt, or the amount of the debt; that he may request a waiver; that he may request a hearing; and that he may appeal the underlying debt. 38 C.F.R. § 1.911(b), (c). This information was provided to the appellant in two, separate October 2004 letters. The claimant must also be provided notice of the reasons for the debt. 38 C.F.R. § 1.911(d). This was accomplished in the an October 12, 2004, phone call to the Veteran, the October 16, 2004, letter, and the December 2005 statement of the case. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue on appeal has been obtained. In January 2010, the Board had remanded the claim because there were missing records in the claims file. For example, VA did not have evidence showing the creation of the overpayment, one of the notice letters to the Veteran, and the annual financial statement the Veteran had submitted in June 2005. All of these records were obtained and associated with the claims file. Thus, the Board finds there has been substantial compliance with the January 2010 remand instruction. The Veteran had requested a hearing before the Board in his VA Form 9, appeal to the Board, received in January 2006. A hearing was scheduled in July 2007, and the Veteran was informed of the scheduled hearing in June 2007. He failed to appear for the hearing. Thus, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2010). For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the claim. The Board finds that the evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Timeliness of Waiver For purposes of background, in January 1998, the Veteran filed a claim for pension benefits. In a May 1998 rating decision, the RO granted entitlement to pension benefits. In an August 1998 letter, VA informed the Veteran that it had tried on several occasions to reach him by phone to clarify his wife's income. It noted that it could not pay him pension benefits until it had received current income information and asked him provide his and his wife's income for the period from January 1998 to December 1998. In an August 1998 VA Form 21-4138, Statement in Support of Claim, the Veteran wrote that he was divorced and had no dependents and no income. He told VA he was not drawing Social Security and that such claim had been denied. He noted, however, he had obtained a lawyer and had put in an appeal. In a September 1998 letter, VA informed the Veteran he was entitled to $722.00 monthly for pension benefits. It stated that his pension rate depended on his income. It noted that medical expenses could be used to reduce his income. VA stated that it had determined the Veteran had no income from earnings, Social Security, retirement, or other sources. It then informed the Veteran that he should tell VA "right away" if his income changed, if he gained a dependent, if his net worth increased, or he moved. In September 2004, the Milwaukee VA Pension Center requested information regarding whether the Veteran was receiving Social Security benefits and when such benefits started. VA received a response showing the Veteran had been granted benefits as of May 2001 and began receiving monthly payments in January 2003 with a retroactive check of $21,438.00. On October 1, 2004, VA contacted the Veteran by phone and shared with him the information received from the Social Security Administration indicating he had been receiving monthly benefits since January 2003 with retroactive payment of more than $21,000.00. The VA employee noted that the Veteran agreed to terminate his pension benefits immediately to avoid an additional overpayment. On October 2, 2004, VA informed the Veteran that it proposed to terminate his pension benefits, effective February 1, 2003, which was the first month following the date the Veteran first received his payment from the Social Security Administration. It told the Veteran that he could provide evidence that his income was under the pension limit and how medical expenses could reduce his income. It noted that it would inform the Veteran in a separate notice as to how much he had been overpaid. The letter informed him he had one year to disagree with this decision to terminate his pension. On October 16, 2004, VA informed the Veteran that he had been paid $16,310.00 to which he was not entitled. It informed him he could pay that amount in full or could work out a payment plan with VA. It stated that he had the right to dispute the amount of the debt and the right to request a waiver. It noted that the information regarding these options was in the enclosed document entitled, "Notice of Rights and Obligations." The attached notice indicates that a waiver of overpayment must be submitted within 180 days, and such wording is in bold. See Notice attached to October 16, 2004, letter. On June 21, 2005, VA received VA Form 5655, Financial Status Report, from the Veteran, wherein he indicated he could pay $50.00 towards his debt. The Committee construed the Financial Status Report as being a request for a waiver of overpayment and determined the Veteran had not submitted a timely waiver. This appeal ensued. The Veteran contends that VA should waive the debt because to pay it would cause him an undue hardship. After considering all of the evidence of record, the Board finds that the Committee was correct in denying the request for a waiver. Regarding the timeliness of the waiver request for that overpayment, under 38 U.S.C.A. § 5302 and 38 C.F.R. § 1.964(e), a request for a waiver of an overpayment must be made within 180 days of the date of notification of the indebtedness. The record reflects that the VA Debt Management Center sent letter to the Veteran on October 16, 2004, advising him that an overpayment indebtedness had been created, and that he had the right to request a waiver of recovery of the overpayment within 180 days. However, there is no question that the Veteran did not request a waiver within that period. The earliest correspondence received from the Veteran is in June 2005, when he submitted the Financial Status Report, which was well over 180 days after the October 16, 2004, letter (180 days from the date of the October 16, 2004, letter would have been on April 14, 2004). The Veteran has not attempted to allege that he timely requested the waiver. Rather, he is arguing that the debt should be waived because of the undue hardship it would cause him. In the VA Form 9, Appeal to the Board, received in January 2006, he argued about questions on the Financial Status Report and not the timeliness of his waiver request. The Board notes that approximately two weeks before the Veteran received the October 16, 2004, letter, he had received a notice of the decision to terminate his pension benefits, effective February 1, 2003. In that notice, the Veteran was informed that he had one year to appeal that determination. This earlier notice letter addressed the decision to terminate the pension benefits and did not discuss the right to seek a waiver. The October 16, 2004, letter addressed the creation of the debt and the ability to seek a waiver of the debt. The attached notice to the subsequent October 16, 2004, letter was clear in explaining that in order to seek a waiver, the request needed to be submitted in 180 days. Specifically, in the notice, it states in all upper case and bold letters: "RIGHT TO REQUEST WAIVER OF THE DEBT." In that paragraph, it states in bold, "You have 180 days from the date of this letter to submit your request." Thus, there can be no argument that the Veteran was not provided notice that he needed to submit a request for a waiver of the debt within 180 days of October 16, 2004. The applicable regulation, 38 C.F.R. § 1.963, provides for extension in circumstances where the individual requesting waiver is able to demonstrate that there was a delay in notification as a result of error by the VA or postal authorities or due to other circumstances beyond the Veteran's control. Such circumstances have not been demonstrated or even alleged. In summary, the claim for a waiver was received more than 180 days after notification, and circumstances warranting extension of time have not been shown. Accordingly, the Board concludes that the Veteran's request for waiver of recovery of an overpayment indebtedness in the amount of $16,310.00 was not timely filed. ORDER As the request for a waiver of recovery of an overpayment of pension in the amount of $16,310.00 was not timely filed, the appeal is denied. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs