Citation Nr: 1312747 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 10-45 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether a debt in the amount of $7,616.23 due to overpayment of Chapter 30 educational benefits from May 8, 2006 to December 15, 2006, was validly created, and the related issue of whether waiver of the debt is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from January 1996 to January 2006. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2008 decision by the St. Louis, Missouri, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which determined that an overpayment of Chapter 30 education benefits had occurred, creating a debt in the calculated amount of $7,616.23. In October 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in April 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2010. An April 2013 review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. In April 2006, VA received the Veteran's application for Chapter 30 educational benefits, requesting approval of a Microsoft certification course to be taken from May to December 2006, through an independent study/distance learning/Internet program provided by the New Horizons Computer Learning Center; VA approved the Veteran's application in September 2006. 2. In July 2008 correspondence, the VARO informed the Veteran that a survey of his educational program had been conducted, and notified him that on line live programs had not been approved for training of VA students. He was notified that changes in his benefits had been made based on these findings and that a debt in the amount of $7,616.23 had been created. 3. VA bears sole responsibility for the erroneous payment of benefits due to administrative error and a valid debt was not created for the Veteran. CONCLUSION OF LAW The criteria for a finding of a valid debt in the amount of $7,616.23 due to overpayment of Chapter 30 education benefits, for the period from May 8, 2006 to December 15, 2006, are not met, and the entire amount of the debt is waived. 38U.S.C.A. § 3011, 3014, 3015, 3685 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.7136, 21.7144 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Due Process Considerations VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). However, these provisions do not apply to cases involving overpayment or indebtedness. See Barger v. Principi, 16 Vet. App. 132, 138 (2002); Lueras v. Principi, 18 Vet. App. 435 (2004). The Veteran was instead notified of his appellate rights in the July 2008 correspondence informing him of the RO's decision, in which a VA Form 4107 was enclosed. Moreover, the Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to notice or assistance was harmless and need not be further discussed. Background In March 2006, the Veteran filed an application for Chapter 30 education benefits (VA Form 22-1995) with VA. Therein, he indicated that he was seeking a Microsoft certification and sought approval of educational expenses for an independent study/distance learning/Internet program through the New Horizons Computer Learning Center. Specifically, he described his program of study as Microsoft Certified Systems Engineer. VA received the application in April 2006. In September 2006, VA Chapter 30 benefits were approved and awarded to the Veteran for pursuit of his studies from May 8, 2006 to December 15, 2006. In July 2008, the Veteran received a letter from the VARO, informing him that a survey of his educational program had been conducted, revealing that between May 8, 2006 and December 15, 2006, he was certified for training as a Microsoft Certified Systems Engineer through a New Horizon on line live program. He was informed that on line live programs had not been approved for training of VA students. He was notified that changes in his benefits had been made based on these findings and that a debt in the amount of $7,616.23 had been created. Analysis The Veteran argues that the creation of a debt of VA Chapter 30 educational benefits in the amount of $7,616.23 was not his fault, and was instead due solely to VA administrative error. He maintains that he fully disclosed at the time he requested educational benefits in March 2006, that the training he sought was an on line/Internet course, which was approved by VA later in 2006 based on that information. Whenever VA finds that an overpayment of educational assistance benefits has been made to a Veteran, the amount of such overpayment shall constitute a liability of such Veteran to the United States and may be recovered in the same manner as any debt. 38 U.S.C.A. § 3685(a), (c); 38 C.F.R. § 21.7144. The issue of the validity of a debt is a threshold determination that must be made prior to a decision on a request for waiver of the indebtedness. See Schaper v. Derwinski, 1 Vet. App. 430 (1991). Where an erroneous award is based on an act of commission or omission by a payee or with the payee's knowledge, the effective date of the discontinuance of the erroneous payment is the date the award became erroneous, but not earlier than the date entitlement ceased. Jordan v. Brown, 10 Vet. App. 171, 174 (1997). Therefore, a finding of administrative error requires not only error on the part of VA, but that the beneficiary be unaware that the payments are erroneous. 38 U.S.C.A. § 5112 (b)(2); 38 C.F.R. § 3.500(b). If the claimant fails to provide full disclosure of facts or due to the amount of the overpayment should know an error has been made, yet accepts the payment, the overpayment is not considered due to administrative error. See VA Manual 22- 4, Part III, § 2.03. For example, an administrative error exists when VA erroneously interprets the law to allow payment of greater benefits than the legislative intent. Administrative error does not apply when the claimant accepts an amount that is patently excessive. Id. In this case, the Veteran was entirely forthright in his March 2006 application for educational benefits regarding the: (1) type of training sought; (2) educational provider; and (3) method of training/classes to be utilized (on-line/Internet). Based on the accurate information provided by the Veteran, his program of study from May to December 2006 was fully approved by VA in September 2006. Almost 2 years later (July 2008) VA essentially informed him that on-line programs were not approved for VA training purposes, made a change in his benefits, and advised him of the creation of a debt in the amount of $7,616.23, which he was to be requested to pay. Given the circumstances, the Board can find no error on the part of the Veteran. He did not cause or contribute to VA's error, nor did he have any way of knowing that an error had in fact been made, until nearly 2 years after his request for educational benefits, and his specifically and accurately described program of study, had been unconditionally approved. Accordingly, the overpayment at issue is considered to be due solely to an administrative error. If a debt is the result solely of administrative error, the effective date of the reduction of benefits would be the date of the last payment based on this error; consequently, there would be no overpayment charged to the Veteran for the portion of the overpayment attributable to administrative error. 38 U.S.C.A. § 5112(b)(10); 38 C.F.R. §§ 3.500(b), 21.7635(q)(2); see Erickson v. West, 13 Vet. App. 495, 499 (2000). The entirety of the created debt here is attributable to the period covered by the administrative error. The debt at issue was created between May and December 2006; VA did not discover or advise the Veteran of the error until July 2008. Accordingly, no valid debt was created, and for that reason waiver of the entire calculated amount of the debt. $7,616.23, is warranted. ORDER A debt of Chapter 30 education benefits in the amount of $7,616.23, from May 8, 2006 to December 15, 2006, was not validly created and waiver of the entire amount of that debt is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs