Citation Nr: 1301010 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 10-37 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a waiver of the recovery of an overpayment of non service-connected pension benefits in the amount of $5,194.64, to include whether the waiver request was timely received. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1973 to April 1975. This matter comes before the Board of Veterans' Appeals (Board) from an April 2010 decision of the Committee on Waivers and Compromises (Committee) at the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In that decision, the Committee denied the Veteran's request for a waiver of the recovery of indebtedness in the amount of $13,070.64. The RO in Milwaukee, Wisconsin currently has jurisdiction over the Veteran's appeal. In August 2010, the agency of original jurisdiction (AOJ) reinstated the Veteran's non service-connected pension benefits following his release from incarceration, effective December 31, 2009. This action reduced the overpayment of non service-connected pension benefits to $5,194.64. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. The documents in this file have been reviewed and considered as part of this appeal. FINDINGS OF FACT 1. On July 9, 2009, the VA Debt Management Center (DMC) issued a letter notifying the Veteran of an overpayment of non service-connected pension benefits in the amount of $13,070.64 and of his right to request a waiver of the debt within 180 days. This letter was sent to his address of record and was not returned as undeliverable 2. In March 2010, more than 180 days after notification of the overpayment at issue, the DMC received correspondence from the Veteran wherein he requested waiver of the overpayment. CONCLUSION OF LAW The Veteran's request for a waiver of the recovery of an overpayment of non service-connected pension benefits in the amount of $5,194.64 was not timely filed. 38 U.S.C.A. § 5302(a) (West 2002); 38 C.F.R. § 1.963(b)(2) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and implementing regulations 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. Barger v. Principi, 16 Vet. App. 132 (2002); see also 38 U.S.C.A. § 5302 (West 2002). Analysis 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. 38 U.S.C.A. § 5302(a); 38 C.F.R. § 1.963(b)(2). If any person to whom pension is being paid is imprisoned in a Federal, State, or local penal institution as the result of conviction of a felony or misdemeanor, such pension payments will be discontinued effective on the 61st day of imprisonment following conviction. 38 C.F.R. § 3.666 (2012). The debt in this case was created when the Veteran was incarcerated from October 2007 to February 2008 and again in July 2008, but failed to inform VA of his incarceration. See Id. In a letter dated on July 9, 2009, the DMC notified the Veteran of an overpayment of benefits in the amount of $13,070.64. This letter also informed him of the right to dispute the debt and to request a waiver and stated that information regarding these options was included in the enclosed document entitled "Notice of Rights and Obligations." The enclosed document notified him of the requirement to submit any request for a waiver of the debt within 180 days of the date of notice of the debt (i.e. July 9, 2009). The document entitled "Notice of Rights and Obligations" is not included in the claims file or among the Veteran's paperless records in the Virtual VA system. However, the July 2009 letter noted that enclosures were included with the letter. Also, the Committee noted in its April 2010 decision that the DMC's Centralized Accounts Receivable Online System (CAROLS) reflected that the Veteran had been notified of his waiver rights in the July 2009 letter. Moreover, the Veteran has not asserted that such document was not enclosed with the July 2009 letter. Hence, the Board concludes that the July 2009 letter contained adequate notice of the need to a request a waiver of the debt within 180 days. See Kyhn v. Shinseki, 24 Vet. App. 228; Mindenhall v. Brown, 7 Vet. App. 271 (1994). Although a copy of the Veteran's request for a waiver is not in the claims file or among his records in the Virtual VA system, the Committee's April 2010 decision and an August 2010 statement of the case indicate that a VA Financial Status Report form (VA Form 20-5655) was reportedly received by the DMC on March 31, 2010, wherein the Veteran requested a waiver of the debt incurred due to his imprisonment. In his July 2010 notice of disagreement (VA Form 21-4138), he acknowledged that he was unaware of the debt until March 2010. However, he attributed his failure to submit a timely waiver request to the fact that he had changed addresses, been homeless, and again been incarcerated in the time since the debt had been incurred. He did not receive notice of the debt until he retrieved his mail from his sister in March 2010. In this regard, there is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Mindenhall, 7 Vet. App. at 274 (VA need only mail notice to the last address of record for the presumption to attach). This presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). An allegation of non-receipt, by itself, is insufficient to rebut the presumption of regularity. Id. The July 2009 letter which notified the Veteran of the debt at issue in this case, of his right to request a waiver of the debt, and of the requirement that any waiver request be submitted within 180 days was sent to the Veteran's address of record and was not returned as undeliverable. Although the Veteran has contended that his address has changed in the years since that time and that he has been homeless, the address to which the July 2009 letter was sent is the same as that provided by the Veteran on a September 2011 statement (VA Form 21-4138). A December 2012 letter included among the Veteran's paperless records in the Virtual VA system was also sent to the same address and his address of record as shown in the VA's Veterans Appeals and Control Locator System (VACOLS) is identical to that listed on the July 2009 letter. There has been no document mailed to that address which has been returned as undeliverable. Therefore, even though the Veteran has asserted that he did not receive notice of the debt at issue until March 2010 because his sister was in possession of his mail until that time, the fact remains that the July 2009 letter was sent to his address of record and was not returned as undeliverable and neither he nor his representative have advanced any other arguments to rebut the presumption of regularity. The Board concludes that he received notice of the debt. See 38 C.F.R. § 3.1(q) (2012) (notice means written notice sent to a claimant or payee at his or her latest address of record). Moreover, he has not demonstrated that notice of the debt was delayed as a result of an error by the postal authorities or due to other circumstances beyond his control. Thus, it must be presumed that the July 2009 letter was properly sent and received by the Veteran. The law is clear that a request for a waiver of a debt must be made within 180 days following the date of notice of the debt. The fact that the Veteran's waiver request was reportedly not received until March 31, 2010 (i.e. more than 180 days following the July 9, 2009 letter which provided notice of the debt) forecloses eligibility for a waiver. Accordingly, his request was not timely filed and this appeal is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); 38 C.F.R. § 1.963(b)(2). ORDER Entitlement to a waiver of the recovery of an overpayment of non service-connected pension benefits in the amount of $5,194.64 is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs