Citation Nr: 1303375 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 13-00 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to a waiver of recovery of overpayment of additional compensation benefits in the amount of $12,044. REPRESENTATION Appellant represented by: Agnes S. Wladyka, Esq. ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran served on active duty from June 1945 to December 1945. The Veteran died on November [redacted], 2011. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (ROIC) in Philadelphia, Pennsylvania. The appellant did not request a hearing before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died on November [redacted], 2011. 2. VA continued to pay disability pension benefits and special monthly compensation for aid and attendance, intended for the Veteran as the designated payee, totaling $12,044 on a monthly basis from December 2011 through May 2012 via direct deposit. 3. Neither the appellant nor anyone associated with her advised VA of the Veteran's death until May 4, 2012. 4. The appellant received the $12,044. 5. The overpayment was not the result of VA administrative error. 6. The appellant was not the designated payee or the designated beneficiary of the payments intended for her spouse, and, therefore, has no entitlement to said benefits. 7. VA may not consider a waiver for indebtedness that results from the appellant's receipt of payments designated for her deceased spouse. CONCLUSIONS OF LAW 1. The overpayment of additional VA disability compensation benefits, submitted for the Veteran's benefit, in the amount of $12,044 from December 2011 to May 2012 was legally created, and was not based upon sole VA administrative error, such that the debt was valid. 38 U.S.C.A. §§ 1115, 5110, 5112, 5302 (West 2002 & Supp. 2012); 38 C.F.R. §§ 1.911, 1.956, 1.962, 3.4(b), 3.401, 3.500, 3.501, 3.660 (2012). 2. Consideration of the appellant's claim for a waiver for indebtedness is not authorized by VA regulations. 38 U.S.C.A. §§ 5107, 5302(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 1.962, 1.963(a), 1.965(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), imposes obligations on VA in terms of its duties to notify and assist claimants. But the U. S. Court of Appeals for Veterans Claims (Court) has held that the VCAA is not applicable to claims for waiver of recovery of overpayment. Reyes v. Nicholson, 21 Vet. App. 370, 379-380 (2007); Barger v. Principi, 16 Vet. App. 132, 138 (2002); see also Lueras v. Principi, 18 Vet. App. 435 (2004) (holding that the VCAA does not apply to a waiver). Although the VCAA does not apply, the Board sees that the Agency of Original Jurisdiction (AOJ) nonetheless notified the appellant of the relevant regulations, discussed the relevant evidence, and explained its decision in its June 2012 decision and October 2012 Statement of the Case (SOC). The Board notes that the record of evidence does not contain a copy of any notice letter mailed to the appellant, informing her of the amount of the debts and the VA regulations pertinent to the issue at hand. However, in both the June 2012 decision and the October 2012 SOC, the AOJ indicated that they mailed the appellant a letter on May 16, 2012, advising her of the debt amount and VA regulations. The Court has held that "there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties." Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 71 (1926)). The presumption of regularity attaches to "all manner of VA processes and procedures." See Woods v. Gober, 14 Vet. App. 214, 220 (2000). Thus, it follows that the presumption is applicable to the issuance of the May 16, 2012 letter as reported in the June 2012 decision and the October 2012 SOC. Absent clear evidence to the contrary, VA is entitled to the presumption that the AOJ properly issued the letter. The Board notes that the neither the appellant, her appointed fiduciary, nor the appellant's representative have suggested that the AOJ did not issue the May 2012 notice letter. In addition, apparently in response to the issuance of the May 2012 letter, advising her of the overpayment at issue, the appellant submitted a claim for a waiver in June 2012. Therefore, the Board finds that the AOJ is entitled to the presumption that it mailed the May 16, 2012 letter to the appellant. The Board notes that, in June 2012 and August 2012 letters, the Veteran's representative requested that she be issued a financial status report form (FSR) so that she might accurately report on the hardship that would be caused to the appellant if VA were to seek recovery of the overpayment. The record does not indicate that VA ever issued a FSR to the appellant's representative. However, the Board accepts that the appellant has considerable out-of-pocket income and few assets, as indicated in her May 2012 claim for special monthly compensation for aid and attendance compensation and her various statements included in the record. Most importantly, as will be explained below, the payments in question were intended for the designated payee, the late Veteran, and the appellant has no entitlement to those funds. VA regulations stipulate that the Board cannot even consider a claim for a waiver for overpayment in such circumstances. Therefore, to remand to issue a FSR to the appellant would serve no useful purpose and would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Thus, the Board will now address the merits of the issue before it. Governing Law and Regulations for Validity of Debt An overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. See 38 U.S.C.A. § 5302; 38 C.F.R. § 1.962. An overpayment may arise from virtually any benefits program administered pursuant to VA law, including pension, compensation, dependency and indemnity compensation (DIC), educational assistance benefits and subsistence allowance, insurance benefits, burial and plot allowances, clothing allowance, and automobile or other conveyance and adaptive equipment allowances. 38 C.F.R. § 1.956(a). Under VA regulations, waivers for overpayment may be sought only if such overpayment was made to a "designated living payee or [designated] beneficiary." 38 C.F.R. § 1.962 (2012). Regulations further state that there is to be no waiver consideration of an indebtedness that results from the receipt of a benefit payment by a non-payee who has no claim or entitlement to such payment. Id. In a September 2009 rating decision, the AOJ granted the late Veteran's claim for a nonservice-connected pension, and special monthly compensation for aid and attendance due to his disabilities. The non-service connection pension benefits were intended to provide money to the Veteran who had served during a period of war and was then permanently and totally disabled due to nonservice-connected disabilities. 38 U.S.C.A. § 1521(a) (West 2002); 38 C.F.R. §§ 3.3(a), 3.23 (2012). The Veteran was also provided with aid and attendance due to an inability to provide for his own needs due to his nonservice-connected disabilities. The Veteran died on November [redacted], 2011. As neither the appellant nor anyone acting on the appellant's behalf contacted VA for months after the Veteran's death, VA continued to pay the Veteran payments intended for his benefit totaling $12,044 on a monthly basis from December 2011 through May 2012 via direct deposit. Neither the appellant nor anyone associated with her advised VA of the Veteran's November 2011 death until May 4, 2012. The appellant has not argued that she did not receive the $12,044. Instead, the appellant has requested that the overpayment be waived as it would cause her financial hardship. The Board is sympathetic to the appellant regarding both the loss of the Veteran and her current financial situation. Yet, the record contains no evidence to indicate that the overpayment at issue was the result of VA administrative error; moreover, the appellant's failure to advise VA of the Veteran's death in a timely manner contributed to the creation of the debt. The appellant was not the intended recipient nor the designated beneficiary of the overpayments at issue. Under VA regulations, waivers for overpayment may only be sought only if such overpayment was made to a "designated living payee or [designated] beneficiary." 38 C.F.R. § 1.962 (2012). Regulations further state that there is to be no waiver consideration of an indebtedness that results from the receipt of a benefit payment by a non-payee who has no claim or entitlement to such payment. Id. The appellant, unfortunately, has no entitlement to the payments at issue as they were intended for the late Veteran. Therefore, by law and regulation, the appellant's claim for a waiver is denied. ORDER A waiver of recovery of overpayment of additional compensation benefits in the amount of $12,044 is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs