Citation Nr: 1315780	
Decision Date: 05/14/13    Archive Date: 05/15/13

DOCKET NO.  12-04 069	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to a refund of the recouped overpayment of VA pension benefits, in the calculated amount of $2,465.00.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Hannan, Counsel



INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  

The Veteran served on active duty from May 1952 to June 1956.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 decision issued by the Committee on Waivers and Compromises (Committee) at the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.  Jurisdiction over the claims file was subsequently returned to the RO in Montgomery, Alabama.

In his February 2012 VA Form 9, the Veteran requested a Board videoconference hearing.  The requested Board videoconference hearing was scheduled for March 1, 2013, but the Veteran failed to report for the hearing without explanation.  He has not requested that the hearing be rescheduled.  Accordingly, his request for a Board hearing is deemed withdrawn.  38 C.F.R. § 20.704(e) (2012).

In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the claim.  Virtual VA does currently contain evidence pertinent to the claim that is not already included in the paper claims files.


FINDING OF FACT

The recoupment of the overpayment of VA pension benefits in the amount of $2,465.00 was not against equity and good conscience in this case. 






CONCLUSION OF LAW

The criteria for refunding the recouped overpayment of pension benefits in the calculated amount of $2,465.00 are not met.  38 U.S.C.A. § 5302(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 1.963(a), 1.965(a), 1.967 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000

The notice and duty to assist provisions of the Veterans Claims Assistance Act of 2000 (see 38 U.S.C.A. §§ 5103, 5103A) do not apply to waiver claims.  See Lueras v. Principi, 18 Vet. App. 435 (2004); see also Barger v. Principi, 16 Vet. App. 132 (2002).  Notwithstanding that fact, the Veteran has had a fair opportunity to present arguments and evidence in support of his waiver claim.

Merits of the Claim

As a preliminary matter, the Board notes that evidence of record shows that the entire pension overpayment amount of $2,465.00 already has been recouped.  However, in accordance with 38 C.F.R. § 1.967 (2012) Franklin v. Brown, 5 Vet. App. 190 (1993), the Board will consider whether the Veteran is entitled to a refund of the recouped overpayment.

In cases such as this where there is no fraud, misrepresentation, or bad faith on the claimant's part with respect to the creation of the overpayment, the Board must determine whether recovery of the indebtedness would be against equity and good conscience, thereby permitting waiver under 38 U.S.C.A. § 5302(a) and 38 C.F.R. §§ 1.963(a), 1.965(a).  The pertinent regulation in this case provides that the standard of "equity and good conscience" will be applied when the facts and circumstances in a particular case indicate a need for reasonableness and moderation in the exercise of the Government's rights.  38 C.F.R. § 1.965(a).

The elements of equity and good conscience are as follows: (1) fault of debtor, where actions of the debtor contribute to creation of the debt; (2) balancing of faults, weighing fault of debtor against VA fault; (3) undue hardship, whether collection would deprive debtor or family of basic necessities; (4) defeat the purpose, whether withholding of benefits or recovery would nullify the objective for which benefits were intended; (5) unjust enrichment, failure to make restitution would result in unfair gain to the debtor; (6) changing position to one's detriment, reliance on VA benefits results in relinquishment of a valuable right or incurrence of a legal obligation. 

The Committee determined that there was no fraud, misrepresentation, or bad faith on the Veteran's part with respect to the creation of the overpayment at issue.  There is also no issue as to the validity of the debt, resulting from the Veteran not reporting income from pension payments to his spouse which led to an overpayment of the Veteran's pension benefits.  See Schaper v. Derwinski, 1 Vet. App. 430 (1991) (challenging validity of debt).  The Veteran believes that the debt should be waived as he has significant medical expenses and he contends that the repayment has caused undue financial hardship. 

The Board does not find that the Veteran has experienced undue financial hardship from the repayment of the debt at issue.  A July 2010 VA Form 20-5655, Financial Status Report, indicates that the Veteran and his spouse had a total monthly net income of $2,373 with assets including a house, two motor vehicles and $1,800 in cash plus U.S. savings bonds.  The Veteran reported average monthly expenses of $1,840.  Thus, the Veteran had a positive balance of $533.00 per month.  The Veteran also reported a debt of $200 per month that was owed to a relative for a motor vehicle.  He indicated that he had not repaid any of that debt.  However, even with payment of the listed debt, the Veteran had a positive balance of $333.00 per month.  In light of the Veteran's positive monthly balance plus his listed cash on hand and savings bonds, the Board finds that the recoupment of this debt has not caused financial hardship.  There is no evidence that the completed recovery of the assessed overpayment deprived the Veteran of basic necessities.

Furthermore, the Board does not find evidence that VA was responsible for the creation of the debt; that withholding of benefits or recovery would nullify the objective for which the benefits were intended; or that the Veteran's reliance on VA benefits resulted in relinquishment of a valuable right or incurrence of a legal obligation.  Moreover, it is clear that the Veteran was at fault in the creation of the debt by failing to notify VA of his spouse's retirement income.

In summary, the Board has considered the elements of equity and good conscience.  It has concluded that that the facts in this case demonstrate that the recovery of the overpayment was not against equity and good conscience.  Accordingly, a refund of the recouped pension overpayment is not in order.  In so concluding, the Board has considered the "benefit-of-the-doubt" rule but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990).


ORDER

Entitlement to a refund of the recouped overpayment of pension benefits in the calculated amount of $2,465.00 is denied.  



____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs