Citation Nr: 1318352 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 06-17 974A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to waiver of recovery of a pension overpayment in the amount of $497.00. (The issue of entitlement to service connection for a bilateral eye disorder is addressed in a separate decision.) ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from January 1970 to November 1971 and October 1973 to July 1979. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2005 decision by the Committee on Waivers and Compromises at the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A review of the record shows that the Veteran was represented by a private attorney. See June 2010 VA Form 21-22a. In November 2012, however, the Veteran indicated that he revoked the power of attorney for the attorney that was representing him. See November 2012 VA Form 21-0820. In October 2007, the Board remanded this claim to schedule the Veteran for a hearing before the Board. This hearing has not been held; however, as the Board has decided to grant the Veteran's claim in full, there is no prejudice to the Veteran. FINDINGS OF FACT 1. There is no indication of fraud, misrepresentation, or bad faith on the part of the Veteran in matters involving creation of the debt at issue in this matter. 2. It would be against equity and good conscience to impose upon the Veteran recovery of the overpayment of $497.00 in VA pension benefits. (CONTINUED ON NEXT PAGE) CONCLUSION OF LAW The criteria for waiver of recovery of a pension overpayment in the amount of $497.00 are met. 38 U.S.C.A. §§ 5107, 5302 (West 2002); 38 C.F.R. §§ 1.962, 1.963, 1.965, 3.102 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). However, the Court of Appeals for Veterans Claims (Court) has held that the notice and duty-to-assist provisions of the Veterans Claims Assistance Act of 2000 do not apply to claims for waiver of recovery of overpayment. See Barger v. Principi, 16 Vet. App. 132 (2002). Further, as discussed in detail below, sufficient evidence is of record to grant the matter on appeal in full. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Entitlement to Waiver of Recovery of a Pension Overpayment in the Amount of $497.00 The Veteran seeks waiver of recovery of a pension overpayment in the amount of $497.00. Recovery of overpayment of any benefits made under laws administered by VA may 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. 38 U.S.C.A. § 5302(c); 38 C.F.R. § 1.963(a). "Bad faith" is defined in VA regulations as "unfair or deceptive dealing by one who seeks to gain thereby at another's expense. Thus, a debtor's conduct in connection with a debt arising from participation in a VA benefits/services program exhibits bad faith if such conduct, although not undertaken with actual fraudulent intent, is undertaken with intent to seek an unfair advantage, with knowledge of the likely consequences, and results in a loss to the government." 38 C.F.R. § 1.965(b). If there is no indication of fraud, misrepresentation, or bad faith in the record, the indebtedness shall be waived if the recovery of the overpayment would be against equity and good conscience. 38 U.S.C.A. § 5301(a); 38 C.F.R. §§ 1.962, 1.965. Consideration of equity and good conscience is intended to reach a result that is not unduly favorable or adverse to either the claimant or the Government. It is intended to achieve a result that is fair. 38 C.F.R. § 1.965(a). Six non-exclusive elements are set forth in the regulations to determine whether the facts and circumstances in a particular case dictate that collection of an overpayment would be against equity and good conscience. The following six elements, which are not intended to be all-inclusive, consist of: (1) the fault of the debtor; (2) balancing of faults between the debtor and VA; (3) undue hardship of collection on the debtor; (4) a defeat of the purpose of an existing benefit to the Veteran; (5) the unjust enrichment of the Veteran; and (6) whether the Veteran changed positions to his/her detriment in reliance upon a granted VA benefit. 38 U.S.C.A. § 5302; 38 C.F.R. § 1.965(a). See Ridings v. Brown, 6 Vet. App. 544, 546 (1994). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The decision on appeal is a January 2005 VA determination that a waiver of recovery is not warranted for $497.00 in overpayment debt. The debt was created as a result of an overpayment of VA pension benefits. In December 2002, the Veteran submitted a request to be given consideration for nonservice-connected pension instead of his 30 percent rated service-connected disabilities, as a greater benefit due to financial hardship. He also submitted a VA Form 21-0515, Improved Pension Eligibility Verification Report (Veteran with No Dependents). The Veteran stated he had no income from any source. In January 2003, the Veteran was awarded entitlement to a nonservice-connected permanent and total evaluation, effective December 2002. In February 2003, a letter was sent to the Veteran informing him of his entitlement to pension as the greater benefit, effective January 2003. The benefit was explained in detail, including the need to report any changes in income, dependency, etc. In September 2003, the Veteran submitted evidence reporting that he was now in receipt of Social Security, and accordingly, he requested his pension benefits be discontinued and compensation at the 30 percent rate be resumed. The Veteran submitted a copy of the Social Security award letter dated August 31, 2003. The RO sent the Veteran a letter in October 2003 acknowledging receipt of the correspondence and his pension was discontinued, effective October 2003. In November 2003, the Veteran was notified that an overpayment of $497.00 had been created in his pension account. In January 2004, the Veteran submitted correspondence regarding his overpayment, which was accepted as an implied request for a waiver. In January 2005, the Veteran's request for waiver was denied. Before adjudicating a waiver application, any dispute as to the lawfulness of a debt must first be decided. See Schaper v. Derwinski, 1 Vet. App. 430, 434-35 (1991). In the instant case, the Veteran has not challenged the creation of the indebtedness. The evidence shows that the Veteran notified VA of his receipt of Social Security within a reasonable time period. The Board notes that the RO received notification from the Veteran of his receipt of Social Security on September 29, 2003. The Veteran included a copy of the Social Security notification, which was dated less than a month earlier, at the end of August 2003. The Veteran indicated in his letter that his pension should be terminated as a result of his receipt of Social Security. Thus, the Board finds there is no indication of fraud, misrepresentation, or bad faith on the part of the Veteran. Since there is no indication of fraud, misrepresentation, or bad faith in the record, the indebtedness shall be waived if the recovery of the overpayment would be against equity and good conscience. See Ridings v. Brown, 6 Vet. App. 544, 546 (1994). As to the factors for consideration in making a determination as to whether recovery of the debt should be waived, it does not appear that the RO discontinued the Veteran's pension until October 1, 2003; thus the delay in administrative action to reduce the Veteran's pension appears to have been either a normal administrative processing time or a delay otherwise not the fault of the Veteran. In considering whether to waive any portion of the Veteran's debt, the Board observes that the purpose of VA's pension program is to provide subsistence to disabled wartime Veterans whose income would not otherwise be sufficient to meet their needs. Here, there is evidence that at the time waiver was requested, recovery of the debt would deprive the Veteran of income needed, and thereby defeat the purpose of this program. Moreover, the Board finds that waiver of the Veteran's debt would not result in unjust enrichment of the Veteran given that evidence indicates his financial situation has not fully improved and the amount of overpayment is not substantial. Therefore, after weighing all of the enumerated factors above, the Board finds that recovery of the overpayment would violate the principles of equity and good conscience. In this regard, the Veteran was not at fault in creation of the overpayment, his financial situation at the time waiver was requested indicated some financial hardship, and waiver of the debt would promote the purpose of the pension program without resulting in unjust enrichment of the Veteran. With these factors in mind, and affording the benefit of the doubt in favor of the Veteran, the Board finds that it would be against equity and good conscience to recover from the Veteran the overpayment of $497.00 in VA pension benefits. See Ridings v. Brown, 6 Vet. App. 544, 546 (1994); 38 U.S.C.A. § 5301(a); 38 C.F.R. §§ 1.962, 1.965. Accordingly, waiver of recovery of a pension overpayment in the amount of $497.00 is warranted. ORDER Waiver of recovery of a pension overpayment in the amount of $497.00 is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs