Citation Nr: 1301461 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 02-01 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Timeliness of the request for a waiver of recovery of VA benefits in the amount of $1,892.00. 2. Entitlement to a waiver of recovery of an overpayment of VA benefits in the amount of $1,892.00. 3. Whether an overpayment of compensation benefits (the overpayment announced in the RO's letters dated in June 2009 and July 2010) was properly created. ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran served on active duty from July 1986 to December 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeals from decisions by the Committee on Waivers and Compromises (the Committee) of the Department of Veterans Affairs (VA). The Veteran failed to report for a Board hearing in July 2005. This matter was previously before the Board in April 2006, when the issue remaining on appeal was remanded for additional development. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issue of entitlement to waiver of recovery or an overpayment of VA benefits in the calculated amount of $1,892.00 is addressed in the REMAND portion of the decision below and is REMANDED to the Committee via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There was a delay in receipt by the Veteran of notification of the VA indebtedness in the amount of $1,892.00 due to either error by VA, or by circumstances beyond the Veteran's control. CONCLUSION OF LAW The Veteran's claim for waiver of recovery of the $1,892.00 disability compensation overpayment was timely filed. 38 U.S.C.A. § 5302(a) (West 2002); 38 C.F.R. § 1.963(b) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Timeliness of the request for a waiver of recovery of VA benefits in the amount of $1,892.00 VA law provides that requests for waiver of an indebtedness shall be considered if made within 180 days following the date of a notice of indebtedness, but that the 180-day period may be extended if the individual requesting waiver demonstrates 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 receipt of the notification of indebtedness beyond the time customarily required for mailing. 38 U.S.C.A. § 5302; 38 C.F.R. § 1.963. 38 U.S.C.A. § 5302(a) requires that VA specify the preliminary determination as to the amount of debt in the notification of indebtedness, and that such notification is the event which triggers the 180-day time limit to request a waiver. See Narron v. West, 13 Vet. App. 223 (1999). The Board previously remanded this issue in April 2006. At that time, the Board noted that the April 2001 statement of the case is to the effect that a letter dated June 21, 1999, was mailed to the Veteran informing him of the overpayment. The agency of original jurisdiction has determined that the Veteran did not request a waiver of this overpayment within 180 days as required by 38 U.S.C.A. § 5302; 38 C.F.R. § 1.963(b)(2). However, a copy of the June 21, 1999, letter does not appear to be in the file. There also does not appear to be any internal memorandum or documentation showing such letter was sent. The Board's April 2006 remand explained that, without some evidence that the June 21, 1999 letter was issued, the Board is unable to determine the validity of the agency of original jurisdiction's finding that a timely request for waiver was not received. The Board remanded this issue with instructions that a copy of the June 21, 1999, notification letter should be associated with the claims-file. In the alternative, the Board directed that proper documentation of the issuance of the letter in such other form as may reflect issuance of the letter (for example, a copy of computer records) should be made of record together with a copy of the form of the letter (both front and back and any attachments) should be associated with the claims-file. Any pertinent determinations made by the RO during the processing of the Board's remand are somewhat unclear in light of the absence of a supplemental statement of the case addressing the matter. However, the Board notes that a November 2011 Deferred Rating Decision sheet appears to document the RO's determinations. The November 2011 Deferred Rating Decision sheet indicates that the RO concluded that "the information requested by the REMAND has been located in the claims folder." In this regard, the sheet explains that "[t]here is no VA letter dated June 21, 1999, notifying veteran of an overpayment." The RO appears to conclude that other items found in the claims-file suffice to demonstrate that the alleged notice was actually provided to the Veteran. The RO cites (1) "a computer record dated June 17, 1999, of a one-time payment issued to the veteran of $1892, by Transaction Code 06B, and a Cost Code of 41;" (2) "a VA letter to the veteran dated February 2, 1999, that references the monthly amount of $1892.99, and identifies it as compensation benefits for the month of January 1999, payment dated 2-1-1999;" and (3) "a Data Sheet reflecting Payment History from a Microfiche Date 11/16/99, that lists a CP Special Payment in the amount of $1892.00, 6-21-1999." The Board recognizes the information cited by the November 2011 Deferred Rating Decision sheet. However, the cited information only identifies documentation that tends to show that the Veteran was issued payment (or payments) of $1,892.00 on one or more occasions. The matter of documenting the issuance of the $1,892.00 payment is not the critical issue in this case, nor was it the focus of the Board's April 2006 remand. The issue on appeal concerns the question of whether the Veteran submitted a timely request for a waiver of the VA's attempt to recover a benefits payment in the amount of $1,892.00; the important documentation would be that which establishes when the Veteran was notified of VA's determination to recover the $1,892.00 payment, not documentation merely showing that such a payment had been issued. The timeliness of a request for VA to waive recovery of a benefits payment is not a function of when the benefits payment was made, rather it is a function of when the Veteran was notified of VA's determination to recover the benefits payment. 38 U.S.C.A. § 5302(a) requires that VA must specify the preliminary determination as to the amount of debt in the notification of indebtedness, and that such notification is the event which triggers the 180-day time limit to request a waiver. See Narron v. West, 13 Vet. App. 223 (1999). The Board also notes that the RO has made multiple indications, including as explained in the RO's February 2011 reply to an inquiry from a Member of the U.S. House of Representatives, that "several requests have been made to the St. Paul, Minnesota, Debt Management Center for a copy of the June 21, 1999 notification letter. On January 18, 2011, [we] re-requested a copy of the notification letter from the Debt Management Center." The claims file does not otherwise contain any indication that documentation of the letter was ever obtained from the "several requests." The Board finds that there continues to be no documentation of the alleged June 21, 1999 letter that was reported to have informed the Veteran of the overpayment at issue; nor has any identified document otherwise established the time of such notice. The Board also finds that the RO has reasonably exhausted apparent avenues for identifying outstanding documentation during the six years since the Board's prior remand. In the absence of the necessary documentation, and in view of the significant time passed and efforts undertaken without any confirmatory documentation revealed, the Board finds no adequate basis for determining that June 21, 1999 would be the correct starting date for the 180-day time limit to request a waiver. The Board finds that the Veteran's correspondence to VA requesting waiver of debt (associated with various instances of overpayment of VA benefits) include statements that may be reasonably understood as requesting a waiver of the particular $1,892.00 overpayment at issue; for instance, the Veteran's August 2000 statement documented in a report of contact simply reflects that he "wants waiver of debt." The Board finds that the most reasonable conclusion at this time is that it is unclear when the Veteran was first notified of VA's determination to recover the particular $1,892.00 overpayment at issue, but there is no documentation to show that such notice was issued more than 180 days prior to the Veteran's expression of a request to waive recovery of the overpayment. In sum, the claims file forwarded to the Board does not include a copy of the reported June 21, 1999, notification letter. There is also no written certification from the Debt Management Center as to the date of mailing of the notice letter. The claims-file contains no copy of the type of form letter sent. In other words, the claims file does not include any evidence supporting a finding that the letter was sent on June 21, 1999; the claims file does not otherwise include any evidence showing that such a letter was sent more than 180 days prior to the Veteran's request to waive recovery of the overpayment at issue. The failure of the claims-file to include evidence supporting the Committee's finding regarding the mailing leads the Board to conclude that it is at least as likely as not that there was a delay in receipt by the Veteran of notification of the VA indebtedness, potentially due to either error by VA in not actually sending it as reported. Under the particular circumstances of this case, in which the Veteran's appeal has been delayed by six years while VA has been unable to produce evidence of the alleged June 21, 1999, notification letter, the Board believes that the Veteran should be given the opportunity to have his request for waiver of recovery of the overpayment determined on the merits. ORDER The Veteran's request for waiver of recovery of an overpayment of VA benefits in the amount of $1,892.00 was timely received. The appeal is granted to this extent, subject to the directions set forth in the following remand. REMAND In light of the Board's finding that the Veteran's request for waiver of recovery of the overpayment should be considered timely filed, it is now necessary for the Committee to review the record and determine if waiver of the overpayment of VA benefits in the amount of $1,892.00 is warranted under applicable laws and regulations. The Board notes that it appears from the Committee's decisions as well as the April 2001 statement of the case as a whole that the Committee denied the Veteran's claim concerning this specific overpayment on a finding that the request for waiver was untimely and that it never reached the question of whether a waiver was warranted under the facts of this case. Separately, the Board finds that the claims-file indicates that the Veteran has initiated a new appeal of a more recent RO determination of overpayment of VA benefits. The RO's February 2011 response to an inquiry from a Member of the U.S. House of Representatives describes pertinent events during the pendency of the Board's prior April 2006 remand. The RO explained that "[o]ur office notified [the Veteran] on June 22, 2009, he was overpaid from August 1, 2008, to the present." The RO explained that "[w]e received [the Veteran]'s Notice of Disagreement on August 5, 2010, for the issue of an overpayment the VA paid [the Veteran] for his child." The RO's February 2011 letter characterizes the issue as one that is pending on appeal, despite the described timeline not clearly establishing such. The Board finds that at least one timely notice of disagreement has been filed on this matter. The Board's own review of the claims-file reveals that the Veteran was notified of the overpayment determination in June 2009, and the Veteran filed a notice of disagreement with this determination in July 2009; the notice of disagreement clearly disputes the basis of the RO's determination that an overpayment had occurred. The RO issued another notice of determination to the Veteran in July 2010. The copy of the letter in the claims-file includes additional notations from the RO (not included on the copy sent to the Veteran) explaining that the letter mischaracterizes important details of the RO's actual determination. In August 2010, the Veteran filed another item of correspondence to file a "notice of disagreement" with the July 2010 determination, further contesting the basis of the RO's determination of an overpayment as it had been explained to him in the July 2010 letter. The status of this particular issue on appeal is unclear. Notes attached to the claims file copy of the July 2010 determination letter sent to the Veteran suggest that the overpayment at issue may have been "written off as due to Admin Error." However, the RO sent a letter to the Veteran in August 2010 acknowledging his notice of disagreement and describing the matter of proceeding with an appeal, and the February 2011 reply to a Member of the U.S. House of Representatives concerning the status of appeals describes this matter as a pending appeal. The claims file does not indicate that any statement of the case has been issued to address this issue after the Veteran filed at least one timely notice of disagreement. As a statement of the case has not been issued on this matter, remand is required per Manlincon v. West, 12 Vet. App. 238 (1999). During the processing of this remand, the RO may make clarifying determinations and notify the Veteran of the status of his appeal and the basis for any continued denial of his appeal. Accordingly, the case is REMANDED for the following action: 1. After undertaking such development as the Committee may find necessary (such as obtaining financial information, etc.), the Committee should review the claims-file and determine whether waiver of recovery of the $1,892.00 overpayment is warranted under applicable laws and regulations. If the request for waiver is denied, then the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 2. The RO should furnish the Veteran with a statement of the case with respect to his notice of disagreement appealing whether an overpayment of compensation benefits (the overpayment announced in the RO's letters dated in June 2009 and July 2010) was properly created. The RO should afford the Veteran a reasonable opportunity for response. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect his appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is received, then the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2012). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs