Citation Nr: 1312367 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 10-45 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE The timeliness of the appellant's request for a waiver of recovery of an overpayment of Chapter 30 VA education benefits paid to the Veteran from January 7, 2002 to December 28, 2003, calculated in the amount of $5,709.40. ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1994 to April 1996. This appeal to the Board of Veterans' Appeals (Board) arises from a June 2004 decision, which terminated the Veteran's Chapter 30 education benefit payments effective January 7, 2002, which resulted in overpayment in the amount of $5,709.40 due to his receipt of education benefit payments from January 7, 2002 to December 18, 2003. In November 2009, the Veteran's November 2009 request for a waiver of recovery of the indebtedness created in the amount of $5, 709.40 was denied as it was found that the waiver request was not timely submitted. The Veteran was scheduled to present testimony before a traveling Veterans Law Judge at the RO in Detroit, Michigan in March 2011, however, he failed to report to the hearing. As the Veteran has not presented good cause for his failure to report for the scheduled hearing or requested that it be rescheduled, the Board deems his request for such a hearing to be withdrawn. See 28 C.F.R. § 20.704 (2012). A review of the Veteran's Virtual VA electronic claims file is significant for a June 26, 2004 notice letter from the Debt Management Center (DMC), which is pertinent to the claim on appeal. The Board wishes to make clear that this decision pertains solely to the issue certified to the Board for appellate review as stated on the title page (ie., the timeliness of the Veteran's request for a waiver of recovery of an overpayment of Chapter 30 VA education benefits). As to the underlying validity of the debt at issue in this decision, in June 2004, the Veteran was provided notice of the decision to terminate his Chapter 30 VA education benefits effective January 7, 2002, in June 2004. In July 2004, the Veteran submitted a statement alleging that the outstanding warrant at issue in that decision had been dismissed. He stated, "I hope this is enough proof needed to reinstate my benefits and drop the repayment request of the benefits that I have used." The July 2004 statement was accompanied by an Order of Dismissal dated April 28, 2004, of the criminal division of 36th District Court of Michigan that vaguely showed that a case against him was dismissed on the ground that the complaining witness failed to appear in court. In response, the RO provided the Veteran with a July 2004 letter in which it determined that his request to reinstate his education benefits could not be approved because the court document received contained no indication that it pertained to the warrant number and date at issue. Enclosed with the July 2004 notice letter was a VA Form 4107, Rights to Appeal, however, no further information or evidence was received from the Veteran until November 2009 when he requested a waiver "of a supposed overpayment." The Veteran did not file a timely appeal as to the validity of the underlying debt following receipt of the July 2004 determination. Rather, the current appeal stems from a November 2009 decision that denied his request for a waiver of the debt. Nevertheless, statements contained in the November 2009 Notice of Disagreement and the September 2010 Substantive Appeal suggest that the Veteran has once again raised an issue as to the validity of the debt created by June 2004 decision to terminate his Chapter 30 VA education benefit payments effective January 7, 2002. Thus, the Board finds that's the issue of whether to reopen the previous determination as to the validity of the debt should be referred to the agency of original jurisdiction for appropriate consideration. In this regard, the Board has also considered whether that issue is inextricably intertwined with the issue now on appeal. However, as noted, this appeal concerns solely the timeliness of the Veteran's request for a waiver, and does not touch upon the merits of that request, to include weighing any fault on the part of the Veteran's against any fault on the part of VA. For this reason, the Board finds that these issues are not intertwined and that the Board may proceed with consideration of the question of the timeliness of the Veteran's request. Accordingly, the issue to whether to reopen the Veteran's challenge as to the validity of his debt, has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. From January 7, 2002 to December 18, 2003, the Veteran received Chapter 30 VA education benefit payments, calculated in the amount of $5,709.40. 2. In April 2004, the RO notified the Veteran that VA proposed to stop his education benefits, to include benefits received from January 7, 2002 to December 18, 2003, totaling in excess of $5,700.00, as VA had been advised that he was the subject of an outstanding felony criminal warrant. The letter advised that if specific information was not received in 60 days, his education benefits would be stopped effective January 2002 and any amount paid thereafter would convert to a debt owed to the federal government. 3. In June 2004, the RO notified the Veteran that his Chapter 30 VA education benefits had been stopped effective January 7, 2002, as the information requested in the April 2004 letter had not been received. He was advised of his right to appeal the decision within one year of the June 2004 letter. 4. The Veteran received a letter from the VA's Debt Management Center (DMC) in June 2004 stating that an overpayment in the amount of $5,709.40 (US dollars) had been created and that he had a right to request a waiver of recovery of the overpayment within 180 days. 5. On November 12, 2009, the RO received notification from the Veteran that he intended to request a waiver of indebtedness. Such a request was received five plus years after the Veteran was informed of the actual amount that needed to be recouped by the government. 6. None of the letters or notices sent to the Veteran were returned to VA as being undeliverable, nor has the Veteran alleged that they were not received. CONCLUSION OF LAW A timely request for waiver of recovery of overpayment of Chapter 30 VA education benefit payments in the amount of $5,709.40 (US dollars) was not filed by the Veteran. 38 U.S.C.A. § 5302(a) (West 2002); 38 C.F.R. § 1.963(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). This case concerns the Veteran's disagreement with having to repay an overpayment of VA education benefits. Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107. To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). Notwithstanding the requirements of the VCAA, the provisions of Chapter 53 of Title 38 of the United States Code govern claims for waiver of recovery of a debt owed to VA. This statute contains its own specific notice and duty to assist provisions. The provisions of the VCAA, 38 U.S.C.A. §5100 et seq. (West 2002 & Supp. 2012), are relevant to a different chapter of Title 38, and do not apply to this appeal. See Barger v. Principi, 16 Vet. App. 132 (2002) (the duties specified in the VCAA are not applicable to requests for a waiver of overpayment). Analysis In general, recovery of overpayments of any benefits made under laws administered by the VA shall be waived if there is no indication of fraud, misrepresentation, or bad faith on the part of the person or persons 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 C.F.R. § 1.963(a). As in this case, when notice of indebtedness is dated on or After April 1, 1983, a request for waiver of an indebtedness shall only be considered if the request is made within 180 days following the date of a notice of indebtedness by the VA to the debtor. 38 C.F.R. § 1.963(b). The 180 day period may be extended if the individual requesting waiver demonstrated to the Chairperson of the Committee on Waivers and Compromises that, as a result of an error by either the Department of Veterans Affairs 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 C.F.R. § 1.963(b). The Board additionally notes that in appropriate circumstances, a statutory filing period may be equitably tolled due to the conduct of VA. See Bailey v. West, 160 F.3d 1360, 1365 (Fed. Cir. 1998). Equitable relief is granted only rarely, such as where a claimant actively pursued judicial remedies but filed a defective pleading or where a claimant was induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. Pfau v. West, 12 Vet. App. 515, 517 (1999), citing Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990). The United States Court of Appeals for the Federal Circuit specifically held in Bailey that equitable tolling in the paternalistic veterans' benefits context does not require misconduct (such as trickery); however, the decision in Bailey does require the Veteran to have been "misled by the conduct of his adversary into allowing the filing deadline to pass." Bailey, 160 F.3d at 1365; see also (William) Smith v. West, 13 Vet. App. 525 (2000). In this case, from January 7, 2002 to December 18, 2003, the Veteran received Chapter 30 VA education benefit payments, calculated in the amount of $5,709.40 (US dollars). Three months later, in March 2004, VA was advised by law enforcement authorities that the Veteran was the subject of an outstanding felony criminal warrant issued on October 25, 2001. In April 2004, VA issued a letter to the Veteran, proposing to terminate his Chapter 30 VA education benefit payments, effective December 27, 2001, to include benefits paid to him from January 7, 2002 to December 2003, totaling in excess of $5,700.00 (US dollars), because effective December 27, 2001, law was put into effect stating that VA cannot pay education benefits to an individual who is the subject of an outstanding felony (sometimes known as :high misdemeanor") criminal warrant. 38 U.S.C.A. § 5313. The letter indicated that that no action would be taken to adjust his education benefits for at least 60 days to given him an opportunity to clear the warrant with the agency that issued it. The letter provided a very detailed description of the information and evidence necessary to show that the warrant at issue had been cleared. In June 2004, the RO stopped the Veteran's Chapter 30 VA education benefits effective January 7, 2002, because the Veteran did not submit any information or evidence explicitly described in the April 2004 letter that the warrant at issue had been cleared. In notice letter dated June 26, 2004, the Veteran was notified by the VA Debt Management Center (DMC) of an overpayment totaling $5,709.40 (US dollars). As noted above, in July 2004, the Veteran submitted a statement alleging that the outstanding warrant at issue that resulted in a finding that he was a fugitive felon during the period from January 7, 2002 to December 18, 2003, and consequently, termination of his education benefit payments during that time, had been dismissed. He stated, "I hope this is enough proof needed to reinstate my benefits and drop the repayment request of the benefits that I have used." The July 2004 statement was accompanied by an Order of Dismissal dated April 28, 2004, of the criminal division of 36th District Court of Michigan that vaguely showed that a case against him was dismissed on that date on the ground that the complaining witness failed to appear in court. In response, the RO provided the Veteran with a July 2004 notice letter explaining that his request to reinstate his education benefits could not be approved because the court document received contained no indication that it pertained to the warrant number and date at issue. Enclosed with the July 2004 notice letter was an additional VA Form 4107, Rights to Appeal, however, no further information or evidence was received from the Veteran until November 2009 when he requested a waiver "of a supposed overpayment." In the November 2009 waiver request received by the RO on 12, 2009, the Veteran indicated that he was told that he had an overpayment for being a fugitive felon. He stated that he had ready faxed certified court documents showing that the warrant was released and the charges dismissed. He asked for VA to correct this error as he needed it for his "FHA and a . . . clearance." In closing, he asked that his waiver request be processed. It is noted that the Veteran did not submit any type of waiver request when he originally received notification from the DMC of the original overpayment of $ 5,709.40 (US dollars). After reviewing the Veteran's claim, in November 2009, the Committee denied the Veteran's waiver request. In doing so, the Committee indicated that the Veteran had not submitted a timely request, as he was notified of the original debt of $5,709.40 (US dollars) in June 2004. More specifically, the Veteran was told that he had 180 days after he received notification of the debt to request a waiver. Since he did not do so, pursuant to 38 C.F.R. § 1.963, his request was denied. In response to being informed that his request for a waiver was not timely presented to the VA, the Veteran submitted a Notice of Disagreement, received in December 2009, asking that the RO's decision be overturned. He explained that he sent documents to VA in 2004 (Court Order of Dismissal dated April 28, 2004), which he resubmitted in October 2009 because VA stated that the case (warrant) number was not shown on the document received in 2004. He indicated that the document resubmitted in 2009 was a certified copy of the same document previously submitted in 2004. He stated that the VA and the DMC indicated that the debt was owed because he is a fugitive felon, however, he stated that he is not and never was a fugitive felon, thus, he is not indebted to VA. In September 2010, he stated that he has court documents stating that he is not a fugitive or a felon and they also show that he had been confused for someone else. At the outset, the Board notes that there are two topics which should be addressed prior to determining whether the Veteran's application for a waiver was timely. First, it must be determined that the Veteran actually received notification of the overpayment. Then, it must be determined whether the Veteran was informed of the amount of time he had to request a waiver. The Board finds that the Veteran's July 2004 statement acknowledging the overpayment at issue in this case reflects that he actually received notification of the overpayment. The Board also finds that the Veteran was informed of the amount of time that he had to request a waiver. In this regard, the June 26, 2004 notice letter from the DMC states that information regarding the Veteran's options to dispute the debt, request a waiver, and request a hearing were contain in the enclosed document entitled, "Notice of Rights and Obligations," which the letter advised that he read carefully. The Notice of Rights and Obligations clearly states that a waiver request must be submitted within 180 days. The Veteran has not alleged, nor does the evidence otherwise suggest, that the did not receive the Notice of Rights and Obligations. As to whether the Veteran's debt waiver request was timely, there is simply no evidence of record showing or suggesting that he submitted a waiver request within the 180 day period from his receipt of the DMC notice letter dated June 26, 2004. The Veteran has not alleged, nor does the evidence of record demonstrate that the criteria for extension of the 180 day period have been met. Specifically, he has not demonstrated that as a result of an error by VA or the postal authorities, or due to circumstances beyond his control, that there was any delay in his receipt of the June 26, 2004 notification of indebtedness beyond the time customarily required for mailing (including forwarding). Given that the Veteran has not alleged or substantiated that there was such a delay in his receipt of the notice of indebtedness, the Board shall direct that the 180 day period be computed from the date of his actual receipt of the notice of indebtedness. Receipt of his waiver request in November 2009, more than 5 years later, clearly falls outside of the 180 day period required under 38 § C.F.R. 1.963. Moreover, the Veteran has not alleged that he was given any type of advice or misinformation from VA employees that tricked him into not filing a timely waiver claim. There is no indication of trickery or misleading information provided to the Veteran from VA. For these reasons, the Board finds no basis to toll the filing criteria applicable to this case, including on equitable grounds. As noted above, the case law addressing this type of situation clearly does not apply in the absence of any VA trickery or malfeasance. Equitable relief is not appropriate where the claimant has failed to exercise due diligence in preserving his or her legal rights. See Pfau, supra, at 517. As to the July 2004 statement whereby the Veteran indicated that he was submitting a court order of dismissal that allegedly showed that the warrant at issue had been dismissed, which he "hope[d] [was] enough proof needed to reinstate his benefits and drop the repayment request of benefits used," the Board finds that the statement pertains to the validity or existence of the debt owed and it cannot reasonably be construed as a request that the debt be waived. Indeed, the statement reflects the Veteran's admittedly questionable understanding, as reflected by his use of the word "hope," that the court document would sufficiently show that creation or existence of the debt was invalid. To the contrary, however, the RO promptly provided him with a July 2004 notice letter explaining why the court document received was insufficient to dispose of the claim. The RO enclosed a notice of his appellate rights in the event that he disagreed with that determination, however, the Veteran did not submit further evidence or express a desire to pursue an appeal as to the existence or validity of the debt. Unfortunately, the Veteran failed to provide any additional evidence or information, to include a request that the debt be waived, until more than five years later. Under the law, this constitutes an untimely filing of the waiver application. See 38 U.S.C.A. § 5302(a) (West 2002). Based on the above analysis, the Board concludes that the Veteran's application requesting waiver of recovery of the indebtedness at issue was not timely filed. No relevant exceptions to the legal criteria have been provided or are applicable in this case, and therefore, the Board has no authority to disregard the limitations pertaining to timeliness standards for waiver requests under 38 C.F.R. § 1.963(b)(2) (2012). Accordingly, as the Veteran's request for waiver of recovery of an overpayment was not timely filed, his appeal must be denied. ORDER A timely request for waiver of recovery on an overpayment of Chapter 30 education benefit payments, in the amount of $5,709.40 (US dollars) has not been submitted, and the Veteran's claim is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs