Citation Nr: 1307654 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 12-21 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to waiver of recovery of an overpayment of VA death pension benefits in the amount of $15,891.00. ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to February 1971. He died in May 1991. The appellant is his surviving spouse. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a May 2011 decision of the Department of Veterans Affairs (VA) Debt Management Center (DMC) in Fort Snelling, Minnesota which denied the waiver of recovery of an overpayment of VA benefits in the amount of $15,891.00. Jurisdiction over the appeal was subsequently transferred to the Committee on Waivers and Compromises at the Regional Office (RO) in Philadelphia, Pennsylvania. In a September 2012 letter, the Board notified the appellant that both The American Legion and Virginia Department of Veterans Services (VDVS) had been actively involved in her appeal. The letter informed the appellant that VA regulations stipulate that only one service organization, attorney, or agent may represent her at any one time during the same appeal and, therefore, requested clarification. The letter provided that if a response was not received from the appellant or her specified representative within 30 days of the date of the letter, the Board would assume that she wished to represent herself. A copy of this letter was sent to both The American Legion and the VDVS. No reply has been received from the appellant or an appointed representative. Accordingly, the Board will assume that the appellant has elected to represent herself in this matter. 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. A March 2007 letter from the VA Regional Office and Insurance Center (VAROIC), in Philadelphia, Pennsylvania, informed the appellant that it had received information that she was receiving more Social Security Administration (SSA) benefit income than previously known, and her VA benefits were to be reduced. 2. An August 7, 2007 letter, sent to the appellant at her last known address of record, notified the appellant that her pension benefits were decreased, that she had received an overpayment, and that a forthcoming letter would notify her of the amount of the overpayment debt and how she could repay it. 3. In an August 23, 2007 letter, sent to the appellant at her last known address of record, the VA DMC notified the appellant that an overpayment had been created in the total amount of $15,891.00. This letter also notified the appellant that she had 180 days from the date of this notice to request a waiver of recovery of the overpayment. 4. September 2007 and November 2007 statements, submitted by the appellant, cannot be reasonably construed as a request for waiver of recovery of the $15,891.00 overpayment. 5. Waiver of recovery of the $15,891.00 overpayment was denied in May 2011 without application from the appellant. 6. VA did not receive a request for waiver of recovery of the $15,891.00 overpayment from the appellant within 180 days of the August 23, 2007 DMC notification letter. 7. The appellant has not provided clear evidence showing that she did not receive the August 23, 2007 notice of overpayment, or that there was a delay in the receipt of such notice. 8. The appellant's failure to file a claim for waiver of recovery of the overpayment in question is not shown to be a direct result of a mental illness. CONCLUSION OF LAW The appellant did not file a timely request for waiver of recovery of an overpayment of VA pension benefits in the amount of $15,891.00. 38 U.S.C.A. § 5302 (West 2002); 38 C.F.R. §§ 1.911, 1.963 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Board notes, however, that the VCAA is not applicable to claims involving the validity of the creation of an overpayment or a request for waiver of recovery of overpayment. Lueras v. Principi, 18 Vet. App. 435 (2004); Barger v. Principi, 16 Vet. App. 132 (2002). Instead, the United States Court of Appeals for Veterans Claims (Court) observed in Barger, that the statute pertaining to waiver claims, 38 U.S.C.A. § 5302, contains its own notice provisions. Barger, 16 Vet. App. 132. Under the provisions of 38 U.S.C.A. § 5302, governing the waiver of recovery of claims, VA shall include in the notification to the payee a statement of the right of the payee to submit an application for a waiver under this subsection and a description of the procedure 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 or her rights and remedies, specifically, that he or she may informally dispute the debt, or the amount of the debt; that she or he may request a waiver; that she or he may request a hearing; and that she or he may appeal the underlying debt. 38 C.F.R. § 1.911(b), (c). The claimant must also be provided notice of the reasons for the debt. 38 C.F.R. § 1.911(d). The Board finds that notification in accordance with the provisions of 38 U.S.C.A. § 5302 (a) and 38 C.F.R. § 1.911 was provided to the appellant in an August 23, 2007 notice of overpayment from the DMC and an attached enclosure to the letter, titled Notice of Rights and Obligations. The August 2007 notice of overpayment states that information regarding the appellant's right to dispute the debt and the right to request a waiver are on the enclosed Notice of Rights and Obligations. While a copy of the enclosure was not associated with the claims file, absent clear evidence to the contrary, the Board finds that the document was included with the August 2007 notice. See United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926) (holding that government officials are presumed to "have properly discharged their official duties."); see also Schoolman v. West, 12 Vet. App. 307, 310 (1999). In the present case, the appellant has asserted that she was homeless at the time the August 2007 notice of overpayment was mailed but has not specifically asserted non-receipt of either the notice letter or the enclosed Notice of Rights and Obligations. As the Board will discuss in more detail below, the Board finds that the appellant not provided clear evidence showing that she did not receive the August 23, 2007 notification letter and the Board may presume that such notification was received by the appellant in a timely manner. 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. The Board finds that the evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the appellant with the development of evidence is required. Laws and Regulations Recovery of overpayments shall be waived if there is no indication of fraud, misrepresentation, or bad faith on part of the person having an interest in obtaining the waiver and recovery of the indebtedness from the payee who received such benefits would be against equity and good conscience. 38 U.S.C.A. § 5302(a), (c) (West 2002); 38 C.F.R. § 1.963 (2012). A request for waiver of indebtedness must be made within 180 days following the date of a notice of indebtedness, for notices issued on or after April 1, 1983. 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), (c); 38 C.F.R. § 1.963. VA regulations provide that "notice" means written notice sent to a claimant or payee at his latest address of record. 38 C.F.R. § 3.1(q). In the absence of clear and convincing evidence to the contrary, the law presumes regularity of the administrative process. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (citing Ashley v. Derwinski, 2 Vet. App. at 309 (1992). A statement from the claimant that he did not receive applicable notice is not enough to rebut the presumption. YT v. Brown, 9 Vet. App. 195, 199 (1996). The Board initially notes that the appellant has not challenged the validity of the debt or the amount in question, but rather, seeks a waiver of the debt. The record shows that the appellant was paid VA pension death benefits at the same time she was receiving SSA disability benefits; thus creating an overpayment in the amount of $15,891.00. Because the appellant has not challenged the validity or the amount of the debt, the Board will adjudicate the waiver issue without addressing the creation of the debt. See Schaper v. Derwinski, 1 Vet. App. 430, 434 (1991); VAOPGCPREC 6-98. Timeliness of Waiver Request The Board finds that VA did not receive a timely request for waiver of recovery of an overpayment of VA death pension benefits in the amount of $15,891.00. An August 1991 decisional letter granted the appellant nonservice-connected death pension benefits, effective August 1, 1991. This letter, and subsequent September 1994 and January 2000 letters addressing changes in the amount of the appellant's award, informed her that the pension rate was directly related to her family income, that adjustments to payments must be made whenever her income changed, and that she must notify VA immediately if she or her family received income from a source other than what was shown above. The appellant was also advised that she must report any changes in the income shown, and that failure to inform VA promptly of income changes may result in the creation of an overpayment in her account. A March 2007 letter from the VAROIC in Philadelphia, Pennsylvania, informed the appellant that it had received information that she was receiving more SSA benefit income than previously known, and her VA benefits were to be reduced. In an August 7, 2007 letter, VA notified the appellant that her pension benefits were decreased, that she had received an overpayment, and that a forthcoming letter would notify her of the amount of the overpayment debt and how she could repay it. The August 7, 2007 letter specified the amount of income received by the appellant beginning on April 1, 2005, from Social Security and other sources, which were counted in assessing her monthly entitlement amount. An August 23, 2007 letter from the VA DMC informed the appellant that she was paid $15,891.00 dollars more than she was entitled to receive, and since she was currently receiving VA benefits it was planned that an amount of those benefits would be withheld until the debt was recouped. An enclosed Notice of Rights and Obligations informed the appellant that she had a right to dispute the amount of the debt or request a waiver of recovery of the indebtedness within 180 days by writing. The Board finds that correspondences received by VA subsequent to the date of the August 23, 2007 notification letter do not constitute a timely request for waiver of recovery of the $15,891.00 overpayment. A September 2007 statement was submitted by the appellant "in reply to the VARO Philadelphia, PA letter of August 7, 2007." The appellant stated, "[a]ttached is a print-out from Social Security for benefits I received in 2005. I did not receive benefits in 2004." A Social Security Benefit Statement was enclosed. In a December 2007 letter, the VAROIC stated that they received the appellant's September 2007 letter, and stated, "[a]s mentioned on our letter of August 7, 2007, [we] are counting your Social Security Administration benefits effective April 1, 2005. The appellant was informed of her rights to appeal that decision. The appellant did not appeal the December 2007 decision. The Board finds that September 2007 statement was not a request for waiver of recovery of the $15,891.00 overpayment. Instead, the September 2007 statement was submitted in response to the VA's August 7, 2007 letter which decreased the amount of her pension, and not the August 23, 2007 letter which later notified the appellant of the amount of her overpayment. A plain reading of the September 2007 statement indicates that she was in disagreement with the amount of income counted in assessing her monthly entitlement; however, when the RO clarified in their December 2007 letter that SSA benefits were counted beginning in April 2005 (and not from 2004 as asserted by the appellant), she did not further pursue this claim. A claim is considered abandoned when a claimant does not supply information requested by VA within one year of the request. 38 C.F.R. § 3.158 (2012). The appellant did not submit any correspondences, subsequent to the date of the December 2007 letter, indicating disagreement with the amount of the overpayment in question or the validity of such. Thus, the Board finds that any claim the appellant initiated with regard to the validity of the debt or the amount in question was abandoned when the appellant failed to respond to the December 2007 letter. Additionally, the Board finds that nothing in the appellant's September 2007 statement can be reasonably construed as a request for a waiver of recovery of the $15,891.00 overpayment that was created. In November 2007, the appellant submitted a statement requesting a copy of her husband's active duty service medical record. The Board finds that the appellant's November 2007 statement cannot be construed as a request for a waiver of recovery of the $15,891.00 overpayment. The next correspondence of record from the appellant was an August 2010 VA report of General Information which noted that the appellant called to file a claim for widow's pension. In August 2010, the appellant also submitted a VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits. The Board finds that the August 2010 claim for benefits, which was received by VA three years after the date of the August 23, 2007 notification letter, was not a timely request for a waiver of recovery of the $15,891.00 overpayment. The Board finds, therefore, that there were no documents received within 180 days of the August 23, 2007 notification letter that could reasonably be construed as a request for waiver of recovery of the $15,891.00 overpayment. In May 2011, the DMC denied the appellant's request for a waiver of recovery of the $15,891.00 overpayment because she failed to submit her application for a waiver within 180 days of the date of the August 2007 notification letter. While the May 2011 decision indicated that a request for waiver was received on April 21, 2011, a review of the record shows that no documents were received by the appellant in April 2011. It appears, therefore, that the appellant's request for a waiver of her overpayment was inferred based on her claim for widow's pension at some point after August 2010. The appellant submitted notice of disagreement (NOD) which was received on March 6, 2012, to the May 2011 denial of her request for waiver of her indebtedness. Based on a review of the record, as discussed above, the Board finds that the appellant did not submit a request for a waiver of recovery of the $15,891.00 overpayment, and instead waiver of recovery of the overpayment was denied in May 2011 without application from the appellant. The earliest correspondence from the appellant indicating that she wished to have her indebtedness of $15,891.00 waived was a March 2012 notice of disagreement, received over four years after the August 23, 2007 notification letter. Even if the Board were to infer that a claim for waiver of overpayment was initiated based on the appellant's August 2010 application Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits, this document was received three years after the date of the August 23, 2007 notification letter. Based on the foregoing, the Board finds that VA did not receive a request for waiver of recovery of the $15,891.00 overpayment from the appellant within 180 days of the August 23, 2007 DMC notification letter. See 38 U.S.C.A. § 5302(a) (West 2002). Extension of the 180 Day Filing Period In a July 2012 substantive appeal, the appellant contends that due to circumstances beyond her control, she could not submit a waiver of indebtedness within the 180 day period as she was suffering from severe depression, could not take care of her financial affairs, and was homeless at the time. She contends further that she was residing in temporary housing and that her address changed on multiple occasions. Finally, she contends that her VA indebtedness is so large she could not begin to pay it off and it causes her financial hardship and depression. Notification of the existence of a debt is deemed sufficient when sent by ordinary mail directed to the debtor's last known address and not returned as undeliverable by postal authorities. See 38 C.F.R. § 1.911(e). Moreover, in connection with the mailing of correspondence and the presumption of regularity in the administrative process, the Court has held that VA may rely on the "last known address" shown of record, see Thompson v. Brown (Charles), 8 Vet. App. 169, 175 (1995), and that the burden is on the appellant to keep VA apprised of his whereabouts; if he does not do so, there is no burden on the part of the VA to "turn up heaven and earth to find [the appellant]." See Hyson v. Brown, 5 Vet. App. 262 (1993). The Board finds that the appellant was notified of the $15,891.00 overpayment in the August 23, 2007 DMC letter, which was sent to her last known address of record. While the appellant asserts that she was homeless at the time the August 2007 letter was sent, she has not stated that the notification letter was not received by her, nor has she denied knowledge of the overpayment. The August 23, 2007 letter was not returned as undeliverable. Additionally, a prior August 7, 2007 letter was sent to the appellant at the same address, and in a September 2007 correspondence, stated to be "in reply to VARO Philadelphia, PA letter of August 7, 2007," the appellant continued to identify the same address as her current address. In a November 2007 request for service treatment records, the appellant also listed the same address as her current address. Thus, the Board finds that, despite the appellant's assertion that she was homeless, she continued to receive mail at the same address at the time the August 23, 2007 letter was sent. The Board finds that the appellant has not provided clear evidence showing that she did not receive the August 23, 2007 notification letter and enclosed Notice of Rights and Obligations, and the Board may presume that such notification was received by the appellant in a timely manner. See Schoolman v. West, 12 Vet. App. 307, 310 (1999), (holding that presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary"); see also Mindenhall, 7 Vet. App. 274. Without probative evidence showing that the August 23, 2007 notice of overpayment letter was not received, or that there was a delay in the receipt of such notice, the Board finds an extension of the 180 day filing period is not warranted. 38 U.S.C.A. § 5302(a); 38 C.F.R. § 1.963. The appellant alternately contends that her depression made her unable to take care of her financial affairs. The Federal Circuit has held that filing deadlines can be equitably tolled where a claimant is able to show that the failure to file was the direct result of a mental illness that rendered him incapable of rational thought or deliberate decision making, or incapable of handling his own affairs or unable to function in society. Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004). Also in Claiborne v. Nicholson, 19 Vet. App. 181, 184 (2005), the Court held that the burden of proof is on the claimant to show that the failure to file an appeal was the direct result of a mental illness. Thus, the appellant holds the burden of submitting competent medical evidence showing that he was mentally incapable of filing an appeal with regard to the prior decision. Id. at 184. There is no evidence of record showing that, at the time the overpayment was created, that the appellant's psychiatric condition rendered her incapable of handling her financial affairs, or that any disability prevented her from filing a timely request for waiver. In an August 2012 substantive appeal, the appellant stated that she was sending copies of her prescription medications for depression; however, the appellant has not submitted such evidence to date. The record includes copies of prescriptions, submitted by the appellant in April 2012, which show that she was prescribed amlodipine, simvastatin, and neurotin in April 2012; however, these medications are not indicated for the treatment of depression or other psychiatric disorders. To date, the appellant has not submitted evidence showing that her psychiatric condition was severe enough to render her incapable of handling her own affairs at the time she received the August 23, 2007 notice of overpayment. Further, the record shows that the appellant was able to submit a September 2007 correspondence to VA indicating disagreement with the amount of income counted in assessing her monthly benefits entitlement. The Board finds that the appellant's demonstrated ability to respond to VA notices within 180 days of the issuance of the August 23, 2007 notification letter weighs against the credibility of her more recent lay statements asserting that she was unable to take care of her financial affairs due to depression. For these reasons, the Board finds that the appellant has not submitted competent, credible, or probative evidence showing that her failure to file an appeal was a direct result of a mental illness. See Claiborne, 19 Vet. App. 184. Lastly, the appellant contends that the $15,891.00 overpayment should be waived as it would cause her financial hardship. Under the circumstances presented, the Board is bound by the law and is without authority to grant benefits on an equitable basis. The standard of equity and good conscience, which takes such considerations in to account, comes into play only after a timely request for waiver has been submitted. 38 C.F.R. §§ 1.963, 1.965 (2012). As the appellant's waiver was not timely received, the claim must be denied as a matter of law. Conclusion Based on the above analysis, the Board concludes that the appellant did not submit a request for a waiver of recovery of overpayment within 180 days after notice of the overpayment was sent to her address of record by the DMC on August 23, 2007. The appellant has not met the requirements for an extension of the 180 day notice period under relevant exceptions to the legal criteria. Therefore, the Board has no authority to disregard the limitations pertaining to timeliness standards for waiver requests. See 38 U.S.C.A. § 5302(a); 38 C.F.R. § 1.963(b)(2). Here, the Board has determined that the appellant's request for waiver of overpayment is not timely, and as a matter of law, must be denied. The Court has held that in cases such as this, where the law is dispositive, the claim should be denied because of the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The appellant did not submit a timely request for a waiver of recovery of an overpayment of VA death pension benefits in the amount of $15,891.00 and therefore, the appeal is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs