Citation Nr: 1322097 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 08-06 595A ) DATE ) ) On appeal from the Department of Veterans Affairs Education Benefits Center in St. Louis, Missouri THE ISSUE Whether an overpayment in Dependents' Educational Assistance (DEA) benefits was created for the period from May 21 to August 13, 2007. ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to June 1969. He passed away on June [redacted], 1994, and the appellant is his son. This matter is on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Education Benefits Center in St. Louis, Missouri. The appellant was scheduled to testify before a Veterans Law Judge on June 24, 2009, but failed to appear. Nevertheless, the Board is satisfied that all necessary steps have been taken to provide him with one. Therefore, no further action is required in this regard. See 38 C.F.R. § 20.700 (2012). This appeal was remanded by the Board in September 2009 for further development and is now ready for disposition. FINDINGS OF FACT 1. The reduction in the appellant's course load from 7 to 3 credit hours for the period from May 21 to August 13, 2007, has resulted in an overpayment of benefits in the amount of $1549.35. 2. The appellant has not submitted evidence of mitigating circumstances as to why he was only able to complete 3 credit hours of course work after receiving benefits for 7 credit hours. CONCLUSION OF LAW An overpayment of DEA benefits in the calculated amount of $1549.35 was validly created for the period from May 21 to August 13, 2007. 38 U.S.C.A. §§ 3501, 3510, 3512; 38 C.F.R. §§ 3.807(a), 21.3021, 21.3030, 21.3040, 21.3041, 21.3135, 21.4135, 21.4136, 21.4270, 21.4272 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA Duty to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126, with implementing regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326), VA has specific duties to notify and assist claimants in the development of claims. However, since the claim in this case is governed by the provisions of Chapter 35 of Title 38 of the United States Code, the VCAA and its implementing regulations are not applicable. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) and Lueras v. Principi, 18 Vet. App. 435 (2004). Notwithstanding the fact that the VCAA is not controlling in these matters, the Board has reviewed the case for purposes of ascertaining that the appellant has had a fair opportunity to present arguments and evidence. In short, the Board concludes from that review that the requirements for the fair development of the appeal have been met in this case. For example, the appellant was sent a letter in November 2007, indicating that his benefits had been reduced, and the appellant was able to submit timely responses to this notice. In addition, while the appellant was offered an opportunity for a hearing in this case, he failed to appear. It is also noted that this appeal was remanded by the Board in September 2009. Specifically, the Board instructed the Education Benefits Center to obtain documentation indicating the specific calculated amount of alleged overpayment and the information regarding whether the appellant was seeking a waiver to this overpayment. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, in an e-mail correspondence in March 2013, the Education Benefits Center indicated that a copy of the letter sent to the appellant informing him of the alleged overpayment, was not available. Nevertheless, the appellant has recognized the amount of overpayment in his own statements and, in any event, the Board has final authority in determining the actual amount of the overpayment, if validly created. As a consequence, the Board determines that Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. At the very least, remanding the claim again for documents that may potentially not exist in the first place would only serve to unnecessarily expend VA's resources. Therefore, the Board may proceed in adjudicating this issue without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Reduction in DEA Benefits For the purposes of educational assistance under Chapter 35, the child or surviving spouse of a veteran will have basic eligibility so long as the veteran was discharged from service under conditions other than dishonorable, or died in service; or 1. the veteran has a permanent total service-connected disability; 2. a permanent total service-connected disability was in existence at the date of the veteran's death; or 3. the veteran died as a result of a service-connected disability. 38 U.S.C.A. §§ 3501, 3510, 3512; 38 C.F.R. §§ 3.807(a), 21.3021, 21.3030, 21.3040, 21.3041 (2012). In this case, the evidence establishes that the Veteran died on June [redacted], 1994, due to a service-connected disability, and that the appellant is the veteran's son. As such, there is no dispute that the appellant is entitled to DEA benefits. Rather, the issue on appeal is specifically directed toward the amount of DEA benefits the appellant should have been entitled to for the period from May 21 to August 13, 2007. According to the evidence of record, the appellant was enrolled to take 7 credit hours of coursework at his local community college for the summer term, which ran from May 21 to August 13, 2007. The school's certifying official submitted a report to VA on May 30, 2007, indicating the appellant's enrollment. In reliance on this information, VA processed this information in June 2007, and paid out benefits in the amount of $645.00 per month, the assigned monthly rate for individuals who are taking classes at three-fourths of full-time ("3/4 time") at any point during the 2006-2007 academic year. However, on November 9, 2007, the school's certifying official submitted a second letter, indicating that the appellant's status had changed, and that he had actually taken only 3 credit hours for the summer term at a cost of $240.00 for tuition. After prorating the cost of tuition over the period of the summer term, the RO determined that the appellant was now entitled to only $86.75 in benefits per month, thereby creating an overpayment of, according to the appellant, $1,551.79. The appellant disagrees with the RO's determination that he was overpaid, arguing that he undertook 7 credit hours of coursework that summer, but missed the final examination due to a "personal family matter." As an initial matter, the Board must first determine if the overpayment calculated by the RO was correct. For purposes of calculating VA education benefits, an individual will be considered to be taking undergraduate courses on a "full time" basis if he or she takes 14 credit hours, unless the certifying official states that some other course load is properly characterized as "full time" at that particular college or university. Course loads of "3/4 time," "1/2 time," etc., are equally subdivided in such a way that 10 to 13 credit hours constitutes "3/4 time," 7 to 9 credit hours is characterized as "1/2 time" and so forth. 38 C.F.R. § 21.4270(c) (2012). When the term in question is not a standard semester, as is the case here, the number of credit hours taken will be adjusted through a formula, multiplying the number of hours by 18 and then dividing by the number of whole weeks in the term. 38 C.F.R. § 21.4272(g) (2012). Here, when multiplying the 7 credit hours the appellant originally planned to take by 18, and dividing by the number of weeks in the term (12), he took 10.5 equivalent credit hours. Thus, under the table in 38 C.F.R. § 21.4270(c), he was taking coursework at "3/4 time." By contrast, when multiplying the 3 credit hours he ultimately completed by 18, and dividing the number of weeks in the term, he took only 4.5 equivalent credit hours. Under the table in 38 C.F.R. § 21.4270(c) he was taking coursework at "less than 1/2 time but more than 1/4 time." The appropriate monthly allowance for the 2006-2007 academic year is set forth in a table located at 38 C.F.R. § 21.3131(a)(4). Under this table, when studying at a "3/4 time," the appellant would have been entitled to $645.00 per month. As such, had he actually taken 7 credit hours, the total amount of tuition benefits the appellant would have received from May 21 to August 13, 2007 would have been $1,789.35. However, when an individual's course load is "less than 1/2 time but more than 1/4 time," the monthly rate may not exceed the monthly rate of the cost of the course for tuition and fees. According to the certifying official's statement, the total cost of the course was $240.00. Thus, as the total monthly benefits for the period from May 21 to August 13, 2007 must not exceed $240.00, his monthly benefits were correctly reduced to $86.75 per month. On the basis of these calculations, when the appellant's course load was reduced from 7 to 3 credit hours during the summer term in 2007, a discrepancy in the amount of $1549.35 was created. Having determined that a change in course load would result in a change in benefits, the Board must next determine whether this reduction was proper. In this regard, when an individual withdraws from a course or receives a non-punitive grade which is not used in computing the requirements for graduation, DEA benefits will be reduced or terminated on the last date of attendance unless: a. There are mitigating circumstances as to why the individual withdrew; b. The description of such mitigating circumstances is submitted within one year of receiving notice of the reduction in benefits (although statements may be later submitted if good cause is shown); and c. The individual submits evidence supporting the existence of mitigating circumstances within one year (or later submitted if good cause is shown). 38 C.F.R. §§ 21.3135(c), 21.4135, 21.4136(a). If there are no mitigating circumstances, the educational allowance will be reduced or terminated as of the first day of the term in which the withdrawal occurs. 38 C.F.R. § 21.4135(e)(1). Examples of qualifying mitigating circumstances include: illness in the individual or his family; family death; an unavoidable geographical transfer resulting from the individual's employment; an unavoidable change in employment conditions; immediate family or financial obligations beyond the individual's control that require him to suspend pursuit of the program of education in order to obtain employment; discontinuance of the course by the school; unanticipated active duty for training; or unanticipated child-care difficulties. See 38 C.F.R. § 21.4136(b) (2012). In this case, the appellant submitted a statement in December 2007, stating that he was taking some difficult courses that summer, and that he was "just not able to grasp the subject." He also asserted that he did not receive any notice that he had potentially received benefits he was not entitled to. In a second statement in March 2008, he further explained that he missed the final examination due to a "personal family matter." First, since the summer term ended in May 2007, his statements in December 2007 and March 2008 are timely. Moreover, his statements raise the argument that there were indeed "mitigating circumstances" that impacted his apparent failure to complete his coursework. However, the Board determines that he has not submitted sufficient evidence supporting the existence of such mitigating circumstances. First, while it is clear that some family matters may constitute "mitigating circumstances," he has not specifically described what these circumstances were in any detail. Moreover, the appellant has not submitted any evidence to support his assertions that such mitigating circumstances ever occurred, let alone inhibited his ability to complete his coursework. Finally, although the appellant stated that he did not receive notice of the reduction, it is clear from his statements that he did have some notice, and the Board can only presume that he received the proper notice in the absence of affirmative evidence to the contrary. See United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926) (a "presumption of regularity"). Therefore, as the appellant has not presented an adequate explanation as to why he did not complete his coursework, the Board determines that there were not adequate "mitigating circumstances" that may excuse his failure to complete the courses for which he was enrolled. As a consequence, it was proper for the RO to reduce his DEA benefits consistent with a reduction in course load from 7 to 3 credit hours, and an overpayment in the amount of $1549.35 was validly created. ORDER An overpayment of DEA benefits in the calculated amount of $1549.35 was validly created for the period from May 21 to August 13, 2007. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs