Citation Nr: 1323174 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 04-31 746A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether an overpayment of VA educational benefits in the amount of $18,951.00 was properly created. 2. Entitlement to waiver of overpayment of VA educational assistance benefits in the amount of $18,951.00. REPRESENTATION Appellant represented by: Donald C. Hill, Esq. WITNESS AT HEARING ON APPEAL The attorney ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from August 1977 to August 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2004 decision by the Committee of Waivers and Compromises (COWC) of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In a January 2007 the Veteran's representative presented testimony on the Veteran's behalf before a Veterans Law Judge (VLJ) sitting in Washington, D.C.; a transcript of that hearing is of record. The Board issued a decision in June 2007 that denied the claims identified on the title page. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In November 2010 the Court issued a Memorandum Decision that vacated the Board's decision and returned the case to the Board for further consideration. In April 2012 the Board remanded the case to the RO for further development and readjudication, which has been accomplished. In April 2013 the Veteran was notified that the Veterans Law Judge who presided at the hearing in January 2007 is no longer employed by the Board. Accordingly, the Veteran is entitled to another hearing before a currently-active Member of the Board; the Veteran was advised that if he did not respond within 30 days the Board would assume he did not want another hearing and would proceed accordingly. As the Veteran has not responded, the Board will proceed with the adjudication of the appeal. FINDINGS OF FACT 1. During the period of June 4, 2001, to April 4, 2003, the Veteran received VA educational assistance benefits in the calculated amount of $18,951.00 based on his enrollment at Ramon Magsaysay Technological University (RMTU). 2. The Veteran was paid VA educational benefits for courses that he did not attend. 3. The charged indebtedness in the amount of $18,951.00, was validly created. 4. The Veteran is liable for the overpayment debt. CONCLUSIONS OF LAW 1. The debt created by overpayment of educational assistance benefits in the amount of $18,951.00 is valid. 38 U.S.C.A. §§ 3002, 3011 (West 2002); 38 C.F.R. §§ 21.7020, 21.7070, 21.7144, 21.7153 (2012). 2. Waiver of recovery of the overpayment of educational assistance benefits in the calculated amount of $18,951.00 is precluded by reason of bad faith on the part of the Veteran. 38 U.S.C.A. § 5302 (West 2002); 38 C.F.R. §§ 1.962, 1.963, 1.965 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West. 2002 & Supp. 2005) provides that VA will assist the claimant in obtaining evidence necessary to substantiate a claim. The VCAA and the implementing regulation do not apply in waiver cases because the statutory right to request waiver of recovery of indebtedness within Chapter 53 of Title 38 of the United States Code contains its own notice provisions. See Lueras v. Principi, 18 Vet. App. 435 (2004) citing Barger v. Principi, 16 Vet. App. 132 (2002); see also 38 U.S.C.A. § 5302 (West 2002). Nevertheless, the Board finds that the RO has explained to the Veteran the bases for the finding that the debt was valid, and for the denial of his request for a waiver of overpayment. The Veteran has not asserted any prejudice in regard to the content or timing of the notice he has received. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The RO has also afforded the Veteran the opportunity to present information and evidence in support of the claims. The Veteran requested a hearing before the Board in Washington, and as a convenience to the Veteran the Board accepted a motion to have the Veteran's representative appear alone before the Board and present testimony directly to the Board on the Veteran's behalf. The Veteran's representative has argued that VA's purported failure to provide him with copies of the October 2002 and February 2003 compliance surveys and the May 2003 investigative report was a violation of the VCAA, and the Court's Memorandum Decision in November 2010 held that the Board must address this contention. In that regard, it appears that the representative has in fact been provided with redacted copies of these documents. The representative has demanded he be provided with unredacted copies, but he was specifically advised by letters from the Freedom of Information Act (FOIA) Office at the RO in April 2005 that the names of veterans and witnesses in those documents were being withheld under the exemptions set forth in 38 U.S.C.A. §§ 552(b)(3), 5701(f) (regarding names of veterans) and 38 U.S.C.A. § 552(b)(7) (regarding names of witnesses). The RO's letter advised the representative that if he disagrees with the decision to provide only redacted copies of these documents he should appeal to the VA Office of General Counsel, but the record does not show he has done so. The Board accordingly finds no prejudice to the Veteran in this matter. Neither the Veteran nor his representative has advised the Board of any other existing evidence not already of record that should be obtained before the appeal is adjudicated. The Veteran's representative previously requested that VA subpoena all individuals involved in the investigation, including both witnesses and VA employees, so that he may question them, and the Court's Memorandum Decision directed the Board to consider this question. In February 2005 the Veteran's representative submitted a letter requesting a hearing before a Member of the Board at the RO in Manila ("Travel Board" hearing) in which he intended to present evidence regarding all 30 veterans he currently represented (this although the Board had informed the representative in November 2004 that collective actions are not considered by the Board). In March 2005 the Veteran's representative submitted a "Motion for Issuance of Subpoenas Duces Tecum" asking VA to issue subpoenas for one VA employee and also 17 school officials, all of whom are residents of the Philippines, apparently for the purpose of obtaining testimony by those persons in a Travel Board hearing. However, the Veteran who is the subject of this appeal did not request a Travel Board hearing in Manila; instead, the requested a hearing in Washington, D.C., and the Board sent a letter to the representative in August 2006 denying his demand for a combined hearing and decision that would consider all 30 appeals pending before the Board as a combined case. As an exception to policy, and a convenience to the Veteran, the Board permitted the Veteran's representative to testify on the Veteran's behalf in Washington without the Veteran being present. Thus, in regard to the hearing in Washington, the persons whom VA was requested to subpoena all fall outside the geographical confines for consideration of VA subpoena under 38 U.S.C.A. § 5711(a). However, in compliance with the Court's Memorandum Decision, the Board's remand in April 2012 directed the RO to inform the Veteran and his representative of the circumstances under which subpoenas may be issued, and of the need to submit motions for such subpoenas, and thereafter to duly consider the merits of any motion for subpoena made by the Veteran and his representative. The RO sent a letter to the Veteran and his representative in July 2012 informing them of the conditions for issuance of subpoenas per 38 U.S.C.A. § 5711(a) and 38 C.F.R. § 20.711(a), and inviting them to submit the names and addresses of individuals to be subpoenaed, but no response has been received. Further, the Veteran has not requested another hearing before the Board in or from the Manila RO during which witnesses could be summoned. The Board finds that these actions satisfy the duty to assist in regard to subpoenas and finds no prejudice to this Veteran in regard to any previous failure to issue subpoenas. Other than the matter of subpoenas, no error on the part of VA in regard to the duty to assist was cited to the Court or observed by the Court; the Board is confident that if any additional VCAA defects existed in its June 2007 decision, in the interest of judicial economy such defects would have been brought to the Court's attention. Legal Criteria VA will approve and will authorize payment of educational assistance for an individual's enrollment in any course or subject which a State approving agency has approved and which forms a part of a program of education as defined by 38 C.F.R. § 21.7020(b)(23). 38 U.S.C.A. § 3002(3); 38 C.F.R. § 21.7120. A program of education, in pertinent part, is any unit course or subject or combination of courses or subjects, which is pursued at an educational institution. 38 C.F.R. § 21.7020(b)(23). In order to receive educational assistance for pursuit of program of education, an individual must maintain satisfactory attendance. 38 C.F.R. § 21.7153(c). VA will discontinue educational assistance if the individual does not maintain satisfactory attendance. Id. Attendance is unsatisfactory if the individual does not attend according to the regularly prescribed standards of the educational institution in which he is enrolled. Id. The amount of overpayment of educational assistance paid to a veteran constitutes a liability of that veteran. 38 C.F.R. § 21.7144(b). Recovery of overpayment of any benefits made under laws administered by 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 U.S.C.A. § 5302; 38 C.F.R. § 1.963(a). However, if there is an indication of fraud, misrepresentation, or bad faith in the creation of the overpayment, waiver of the overpayment is automatically precluded and further analysis is not warranted. See 38 U.S.C.A. § 5302(a); 38 C.F.R. §§ 1.962, 1.963, 1.965. The Court has defined bad faith as "a willful intention to seek an unfair advantage." Richards v. Brown, 9 Vet. App. 255, 257-58 (1996). The provisions of 38 C.F.R. § 1.965(b)(2) define bad faith as an 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. When a veteran raises the issue of the validity of a debt as part of the waiver application, it is arbitrary and capricious, and an abuse of discretion, to adjudicate the waiver application without first deciding the veteran's challenge to the lawfulness of the debt asserted against him or her. Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991). The issues of validity of a debt and application for waiver may be adjudicated concurrently, but if a veteran both challenges the validity of a debt and seeks waiver of the debt, RO must first fully review the debt's validity, and, if the office believes the debt to be valid, must prepare a written decision fully justifying the validity of the debt. At that point, the veteran's request for waiver should be referred to the COWC. If waiver is denied, the veteran must be advised of his or her right to appeal both decisions to the Board. VAOPGCPREC 06-98 (April 24, 1998). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background In a VA Form 22-1999, Enrollment Certification, which was signed in June 2001, the Registrar of the Ramon Magsaysay Technological University (RMTU) certified that the Veteran was enrolled on a fulltime basis and taking 15 credit hours in the first semester of school year 2001-02. The Veteran was shown to be pursuing a degree of Bachelor of Agricultural Technology. Subsequent VA Forms 22-1999 were submitted by the Veteran regarding additional semesters at RMTU in November 2001 (15 credit hours in the second semester of school year 2001-02); April 2002 (8 credit hours in summer session of school year 2001-02); June 2002 (17 credit hours in the first semester of school year 2002-03); March 2003 (17 credit hours in the second semester of school year 2002-03); and, April 2003 (9 credit hours in the summer session of school year 2002-03). Throughout this period, the Office of Campus Registrar of RMTU submitted numerous certificates verifying the Veteran's enrollment at that school. The record reflects that the Veteran received basic educational assistance benefits under the provisions of Chapter 30 for each of the semesters that he reported being enrolled at RMTU during the period from June 4, 2001, to April 4, 2003. The RO calculated the total amount of assistance benefits administered during this period as $18,951.00. On October 23, 2002, the RO in Manila conducted a routine on-site Education Compliance Survey at RMTU, performed while the students were on semester break. The primary contact at RMTU for this survey was the Registrar Clerk, who made available the records of the certain randomly selected students, which consisted of individual envelopes for each student containing personal interview forms, immigration papers, Certificates of Honorable Discharge, and records from previous or secondary schools. No other documents such as school curriculum, enrollment forms, or adding/dropping of subject forms were found inside. All of the records examined were found to have discrepancies. The October 2002 Education Compliance Survey Report determined that RMTU had failed to maintain accurate or complete records of enrollment for VA beneficiaries-students, and that significant discrepancies were found in the records that were reviewed. For example, some students had no addresses listed other than P.O. Box addresses, and others had addresses at locations of such distance that it raised questions as to regular attendance at any of the campuses of RMTU. Although no overpayments were found based on the available school records presented, it was noted that it may be necessary to conduct a more extensive compliance survey at a later date, including class checks to monitor actual class attendance of the students. The school's Registrar was advised that VA reserves the right to conduct unannounced visits to check actual school attendance of the student-beneficiaries or take measures to help safeguard the integrity of the VA education program. In February 2003 the RO in Manila conducted a more extensive Education Compliance Survey at RMTU during which the records of all veteran-beneficiary students were reviewed. The survey began at the San Marcelino Campus of RMTU and continued at the Porac Botolan Campus. The survey involved interviews of RMTU staff as well as some students. Reviewing of the records showed significant discrepancies, such as the following: the absence of final grades for certain courses or for entire semesters; different signatures or penmanship appearing on certificates of registration (the staff of the university reported that sometimes students' wives or classmates filled out the forms on their behalf); and, indications that some students received credits consistent with only part-time enrollment even though they were receiving VA benefits for full-time enrollment. Discrepancies were reportedly found in all 60 veteran students' records. In specific regard to the Veteran who is the current appellant, the investigation showed he was being paid full-time (17 hours) for the semester but his summary of grades showed none or insufficient units of credit; the school representative explained the discrepancy by stating that teachers had not yet submitted the final grades and were given one year to do so. As a result of these findings, the Manila RO subsequently conducted a field investigation in May 2003 that involved eleven Manila employees, including 8 field investigators, the head of the Field Section, and two Educational Compliance Survey Specialists (ECSS's). The investigators interviewed 39 individuals including RMTU administration officials, professors, veteran students, and non-veteran students. During the May 2003 investigation the Veteran provided a deposition in which he stated he began studies at RMTU in June 2001 and was currently enrolled in summer school. The Veteran listed the classes he had attended and asserted he attended these classes religiously, except for isolated instances such as medical appointments. The Veteran listed 23 courses he had taken but could name only six instructors. The investigator asked why the Veteran's transcript showed him taking one course (English II) on two occasions, and the Veteran stated he might have made a mistake in enrolling for the same course twice. When asked if he was aware of allegations made by non-veteran students that veteran students did not attend class, the Veteran stated he did not know about that and could not speak for others, but speaking for himself he did attend class. Also in May 2003, a non-veteran student provided a deposition stating he or she was enrolled in a class with the Veteran in the first semester of school year 2001-02, during which he or she only observed the Veteran to come to one lecture; after that the Veteran only appeared in the classroom for mid-term and final examination. During the second semester of that school year the Veteran did not attend class at all. The non-veteran students felt they were being discriminated against, especially in the practicum courses during which the veteran students did not do their fair share of the work; the veterans' names were only included in the practicum reports because the instructor directed it be done. A second non-veteran student provided a deposition in May 2003 stating he or she knew the Veteran to be a classmate. The deponent stated he or she did not see the Veteran attend class; the veteran students would simply submit their class cards and then "take off." During practicum the veteran students financed the projects but did none of the "dirty work." The Veteran did not participate in the practicum work but his name was included in the final report because the instructors directed it be done. The deponent insisted the Veteran did not join in discussion of the project but merely contributed money to the project. A third non-veteran student stated in deposition in May 2003 that he or she know the Veteran to be a veteran student who had been his or her classmate for two years. The Veteran and other veteran students did not attend class. He or she testified that one veteran student attended class initially but was bullied by the other veteran students to stop going to class because the other veteran students were getting grades without attending class. During field practice the Veteran and other veteran students did not participate in the work but only gave financial support. Professor ECV stated in deposition in May 2003 that the Veteran was one of three veterans in her class. She stated that the school strictly enforced complete attendance policy, especially in regard to non-VA students, but the school did not strictly require VA students to attend class for "humanitarian reasons." In the case of the Veteran, he would sometimes just show up once a week, or sometimes not for weeks, but he would be marked as present for attendance purposes. In those situations the veteran students would be given take-home assignments. Professor stated she was unable to show the inspector any test papers, quizzes or term papers by the veterans because they would be returned to the students after grading. Professor ECV stated she did not think the Veteran was violating the school's class attendance policy because it was a common practice in the school to give VA students special consideration and to not really require VA students to attend their classes regularly as long as they submitted their take-home assignments. Depositions from various professors and administration officials confirmed that the veteran students donated supplies to the school and to their instructors, and also paid for various class projects. The Chancellor of the San Marcelino Campus indicated that the veteran students had donated money to their school, and that 50 percent of this had been distributed to teachers as "incentive" awards. Various instructors and non-veteran students also indicated that the veteran students were not required to actually attend classes, and some non-veteran students complained of this fact, indicating that they would be penalized for not attending, while the veteran students were still given passing grades in return for their donations. Some students and faculty indicated that the veteran students often came to class lectures only once or twice a week, and others indicated that many of the veterans never attended classes. For example, one non-veteran student reported that he had never seen any of the veteran students actually attending class over a two-year period, and another non-veteran student admitted to having been "coached" to tell the VA investigators that the veteran students had attended classes when, in fact, they had not. One non-veteran student indicated that he had seen veteran students attending classes for only one month in the 2002-2003 semester and at no time since. In these depositions, some instructors revealed that they did not personally verify the presence of the veteran students in their classes, but, instead, relied on attendance sheets regularly submitted by a representative of the veteran students. Some of the instructors indicated that they either did not know whether the veteran students actually attended, and some admitted that they were aware of the fact that the veteran students did not attend many classes. Instructors also gave various reasons for the different treatment accorded veteran students over non-veteran students, such as language barriers, "humanitarian reasons," or the veteran students already having advanced knowledge. Some faculty members acknowledged that veteran students were only expected to act as financiers by providing monetary assistance to complete projects while the non-veteran students were expected to do the labor. Several faculty members and non-veteran students reported that the non-veteran students were stringently held to the requirement of reporting to class five days a week, but veteran students were not. Some faculty members also admitted that they had been given cash incentives by the administration, which they were told came from donations by the veteran students. At the San Marcelino Campus, a meeting was held with the veteran students in which they were invited to make statements under oath. Several students became hostile, one accused VA of a "witch hunt," and another explained that they would only submit a joint written statement, and not offer testimony under oath. In the written statement, which was signed by 17 veteran students, they explained that the minimum attendance requirement was one hour of classroom instruction a week and/or three hours of laboratory time. They also admitted that class leaders take the attendance by signature of each veteran at the Veterans Park and delivered the attendance sheet to professors, at which time they were given the class assignments. A Summary of Investigative Findings revealed the conclusions of the Manila RO investigation team. It was determined that teachers at RMTU did not require veteran students to regularly attend classes, but instead relied on class leaders to submit Attendance Sheets that contained the names of the veterans students enrolled in the particular class. Teachers apparently relied solely on these Attendance Sheets to assess the students' attendance, and, in fact, did not really know whether their veteran students were even present on campus. All they knew and saw as to the veteran students' attendance was when they observed veteran students gathering at Vet-Park. The veteran students gave material and financial "help" to the school, and, in return, were accorded favorable treatment in violation of the Approval Agreement that the school had made with VA. The scheme was found to have been happening for decades with one teacher disclosing that veteran students had been enjoying the arrangement since that teacher had started in 1989. Most teachers, staff, and non-veteran students admitted that the veteran students had not been attending classes, which was contrary to the insistent claims of the veteran students that they had been doing so. Of the 60 VA students investigated, 4 had evaded contact; 18 were not found at their addresses of record; 2 refused to provide sworn statements; 3 were merely interviewed; 17 provided joint (group) statements; 1 refused to be interviewed; and, 15 gave depositions tending to confirm the statements provided by the non-VA deponents. In specific regard to the Veteran who is the subject of this appeal, the investigator who conducted the interview of the Veteran submitted a report stating investigation showed the Veteran had not undergone formal schooling in the subjects for which he was enrolled, and was accorded special treatment by school authorities who exempted him from regular attendance at classroom lectures and segregated him from the non-VA students in consideration of financial favors. The investigator stated that during interview the Veteran asserted he attended classes regularly but could not provide a convincing reason why he was enrolled for the same subject twice and that he was unable to recall the names of classmates and professors. The investigator also stated the Veteran had confirmed that the preferential treatment he received from faculty members was due to financial considerations given by VA students to the school authorities. The investigator recommended that the case be submitted for possible overpayment and forfeiture of VA benefits. Following this investigation, in June 2003, a recommendation was sent to the Muskogee RO to create overpayments for each of the 60 veterans who was the subject of the investigation. In July 2003, the Veteran who is the present appellant was sent a letter by the Muskogee RO advising him that he had been certified and paid educational assistance benefits for attending RMTU from June 4, 2001, to April 4, 2003, but that their findings indicated that he did not attend classes during that period. His payments were stopped, effective June 4, 2001, which resulted in an overpayment in the amount of $18.951.00. He was advised of his right to request a waiver of this overpayment. In August 2003 the Veteran submitted a statement requesting a waiver of recovery of his overpayment. He asserted that he did attend school, as evidenced by his certificates of attendance and his course grades received. In support of his request, he submitted Enrollment Certifications from RMTU; letters from the Registrar's office indicating that he had passed all classes; and, a transcript of all of his passing grades at that school. Based on the results of the compliance survey, the RO established overpayments for a number of veterans including the Veteran whose appeal is considered herein. Based on the indications of fraud in the compliance survey, the RO referred the case for review to VA's Office of the Inspector General (OIG). Thereafter, in February 2004, an agent of the Criminal Investigation Division of the VA OIG in San Francisco, California, completed a report regarding his review of the situation at RMTU. The agent explained that his analysis was based on an extensive review of the documentation detailing interviews conducted by the Manila RO, correspondence sent by the veterans, a review of files at the Muskogee RO, and interviews of various VA officials and other individuals. The agent further explained that his review was also based on 14 years of experience as a Special Agent with the OIG, some of which had been as a Resident Agent in Charge. The agent noted that he had extensive training in conducting fraud investigations and had also worked extensively in the Philippines on VA-related investigations. Based on his review, the agent concluded that fraud was committed by the 60 veterans who had attended RMTU, and he recommended that all administrative action be taken to recover monetary damages suffered by VA and to forfeit the benefits of the involved veterans. However, based on the complexities and expense of prosecuting individuals in the Philippines, the OIG decided not to proceed with a criminal investigation of the matter. In the OIG report, the agent explained that the essence of the "scheme" at RMTU was that veteran students were listed as enrolled at RMTU, as full time students, solely to collect VA benefits. They never really attended classes, and would meet once a week at a location on campus to circulate attendance sheets for various classes they were enrolled in. They would sign these sheets, and a representative would take them to the relevant professors. The students were given mid-term and final exams, but these exams were given to a representative, and taken to the veteran's park, where they would be answered collectively based on the "honor system." All of the veterans would subsequently receive passing grades, and the school benefits from this system because the veterans would pay for various expenses, usually collectively, through money collected by their "treasurer." It was noted that items paid for by the students included new curtains, sports equipment, water dispensers, renovations, holiday party expenses, and the materials costs associated with class projects. The OIG agent explained that the evidence of all 60 veterans' guilt included the following: the testimony of 13 professors/instructors, plus the Dean of Agricultural Technology, who indicated that the veterans never attended classes; the testimony of seven non-veteran students, and one veteran student who was not involved in the scheme, all of whom indicated that the veterans did not attend classes; and, the testimony of non-veteran students who indicated that the veterans began attending classes regularly after the onset of the investigation by the Manila RO. The agent also pointed to the joint statement signed by 17 of the veteran students in which they asserted that they met the minimum requirement of 1 hour of classroom instruction per week and/or 3 hours of laboratory time for each subject. The agent found that this statement was clearly contrary to the testimony provided by instructors and fellow students, but is indicative of their knowledge that classroom attendance was required. The OIG agent also noted that a similar scheme was in place at Laney College in Oakland, California, and that scheme resulted in a loss of $6 million for VA. The agent indicated that it was his belief that the scheme at Laney College was exported from the school in the Philippines, as there were many similarities beyond just the mechanics of the scheme, similar terminology, and the fact that the RMTU scheme had reportedly been going on since the 1980's. Furthermore, several RMTU professors noted that, when the naval center was still active, they had many more veterans enrolled. The agent noted that the students at Laney College had been sued in Federal Court under the Civil False Claims Act, and most of them paid double damages plus fines. The April 2004 COWC decision denied a waiver of recovery of an overpayment in the calculated amount of $18,951.00, based on a determination that a compliance survey had revealed that the Veteran was paid benefits for the period from June 2001 to April 2003 but was not attending classes. It was also noted that the VA OIG had investigated the matter, and concluded that a scheme was in place at the school that involved many other veterans also not attending classes. The COWC determined that the Veteran had acted in bad faith in the creation of this debt, which precluded consideration of a waiver of recovery of his debt. The Veteran subsequently appealed both the validity of the debt and the issue of entitlement to a waiver of recovery of the overpayment. In May 2004, roughly contemporaneously to the receipt of the Veteran's individual Notice of Disagreement, the Veteran's representative submitted a letter on behalf of the Veteran plus 28 other veterans asserting that Mr. DBB, the Education Liaison Representative (ELR) employed by the Manila RO, had solicited bribes by veterans who were studying at RMTU, and when the bribes was not forthcoming Mr. DBB had retaliated by launching an abusive investigation by 10 agents who employed harassing tactics not sanctioned by VA Manual M21-1, Part VIII, Section 1, Chapter 5 (VA Policy and Procedures in the Field). The representative also asserted that in launching the investigations in February 2003 and May 2003 Mr. DBB was acting outside the scope of his jurisdiction as an ELR. In July 2004 the Veteran's representative submitted a letter asserting that VA Manual M22-4, Part IV, Chapter 5 (Unsatisfactory Attendance, Progress of Conduct), subsection (b) (Termination for Unsatisfactory Attendance, Progress of Conduct) requires that educational benefits being paid to a student must be discontinued if the student's attendance, progress or conduct is unsatisfactory "according to the regularly prescribed standards and practices of the educational institution." The representative argued that the Veteran had not been shown to have unsatisfactory attendance under the standards and practices of RMTU, and that if RMTU had submitted false attendance reports to VA then restitution to VA should be made by RMTU, not by the individual veteran students. The Special Agent in Charge of the VA OIG Western Field Office (in Los Angeles, California) issued a letter in December 2004 addressing allegations of a bribe solicitation by VA Educational Compliance Survey Specialist DBB. The letter states that the OIG had investigated RMTU and had determined that there was an overwhelming amount of evidence indicating that the veteran students at RMTU had for years engaged in a fraudulent scheme against VA to certify they had attended classes that in fact they had not; this resulted in a loss to VA of $1.3 million. The same individuals initiated the allegations of solicitation of bribery by DBB, but those individuals have a strong motivation to discredit the VA investigators who uncovered the fraudulent scheme. Also, DBB was the lead investigator of the educational benefits scheme at RMTU because as the Educational Compliance Survey Specialist he had first uncovered evidence of that scheme, but despite appearances to the contrary DBB was not personally in charge of any of the VA investigators and did not have authority over the outcome of the investigation. The Special Agent in Charge concluded that the allegations lacked credibility and had been put forward in an attempt to obscure the issues and deflated the guilt of the involved veterans. The file contains nine sworn statements, all dated in March 2005 and executed by faculty members of RMTU. The deponents consisted of the then-current Chancellor and the then-current Dean, both of whom were also instructors, as well as seven persons listed as instructors. The nine deponents all endorsed that they would never misreport a student's attendance or provide a course grade to a student who had not attended class, and they endorsed that the veterans attended class each day when they were required to do so. Some of the deponents asserted that the VA investigators who performed the investigation the spring of 2003 threatened the deponents with loss of their teaching credentials if they did not cooperate with the investigation by signing pre-printed admissions they were handed by the investigators. The Veteran's representative appeared before the Board in January 2007 and stated that the action taken against the Veteran arose from a compliance report in May 2003, which was done after satisfactory attendance had been entered in October 2002 and February 2003. The May 2003 unsatisfactory compliance report involved 65 veterans, 30 of whom were represented before VA by the representative. The representative complained about the manner in which VA had handled the appeals in general. In specific regard to this Veteran, the representative stated that the file contains grade reports showing the Veteran attended class, which should be dispositive since a school is not required by VA to maintain attendance records and since the Veteran is documented as having satisfactory attendance by the rules of that school. The representative stated that the compliance report on which the decision was based does not document that the Veteran failed to attend class and does not document that the Veteran defrauded VA. The Board remanded the case to the RO in April 2012 for the purpose of having the RO institute a compliance survey specifically to determine whether this Veteran attended classes at RMTU and also whether an investigation was warranted in to allegations of bribery. A compliance survey was performed in September 2012 by DBB, and the results were released in a Memorandum dated in December 2012. In regard to the question of attendance at class, the investigator interviewed the Campus Registrar and five former classmates of the Veteran. The registrar confirmed that VA students were given preferential treatment, the most visible form of which was an exemption from attending class. One of the Veteran's former classmates did not know the Veteran personally but recalled that at the time of the field investigation she and other students were given a list of veterans' names and were coached to tell VA investigators that those persons had been attending class. Two of the Veteran's former classmates stated they remembered the Veteran personally and knew from personal observation that the Veteran did not attend class. The Veteran's former classmates all asserted that at the time of the VA investigation they had been given a list of names of VA students to memorize, and were told to inform the VA investigators that those persons had been attending class. The report concluded that the Veteran clearly knew of the attendance requirement but was shown by eyewitness testimony to have not attended class; that conclusion was bolstered by the evidence showing that RMTU officials coached their students to mislead VA investigators. In regard to the question of bribery, all the VA employees who participated in the investigations denied such allegations. The investigations were performed openly, by persons who were experienced in performing cases involving fraud against VA. The report stated that the allegation of bribery against VA officials is unfounded and unsupported. Finally, the Veteran's representative submitted an argument to the Board in May 2013 asserting clear and unmistakable error (CUE) on the part of the Manila RO in performing a surprise compliance survey shortly after a "routine" survey in February 2003. The representative asserted CUE in VA's initiation of a VA OIG investigation, the results of which were reported in February 2004, to retroactively support an overpayment that had been created by the RO several months earlier. The representative asserted CUE on the part of the Board's decision in June 2007 in giving evidentiary weight to the VA OIG investigation memorandum even though such investigation was not listed in the OIG's semiannual reports to Congress (the representative enclosed the reports addressing the periods October 2003-March 2004 and April-September 2004). The representative asserted that the Compliance Survey in May 2003 constituted a breach of VA's standing contract with RMTU. The representative asserted that the RO's creation of an "overpayment" constitutes a due process and equal protection violation of the Fifth Amendment to the United States Constitution. The representative asserted that by upholding the RO's refusal to provide the Veteran with copies of the compliance surveys and June 2003 report the Board's decision in June 2007 had committed CUE and had also committed due process and equal protection violations of the United States Constitution. The representative asserted that the Board committed CUE in June 2007 by upholding the RO's creation of overpayment based on allegation that the Veteran had bribed an instructor for a passing grade for a course, when no such attempt or bribe was demonstrated by the evidence of record. The representative asserted VA had committed CUE and violations of the equal protection and due process protections of the United States Constitution in that other veterans who previously attended RMTU during the period 1995 through May 2003 had not been subject to creation of "overpayments." The representative asserted the Board had committed CUE in June 2007 by upholding the VA OIG's refusal to investigate allegations that the May 2003 education compliance survey was "outcome determinative" because it was retaliation for refusal to pay an annual bribe to VA employees. The representative asserted the RO and the Board had committed CUE in failing to determine whether the May 2003 education compliance survey was lawfully implemented and conducted by fully-qualified personnel as required by statutes and implementing regulations. The representative asserted that the RO's refusal to issue requested subpoenas for witnesses within 100 miles of Manila for the purpose of the Veteran obtaining evidence from otherwise-reluctant witnesses constituted a violation of applicable regulations, statutes and the United States Constitution. The representative asserted the RO had violated equity and good conscience by creating an overpayment based on the May 2003 Education Compliance Survey without first obtaining all the relevant facts. The representative asserted that the RO had committed CUE by failing to apply the benefit-of-the-doubt rule. The representative asserted the RO had violated all applicable statutes and regulations, including the United States Constitution, by refusing to allow the Veteran or the representative to see the Veteran's case file before authorizing recoupment of the overpayment from the Veteran's federal payments. The representative asserted that RMTU's practice of excusing veteran students from practical work was essentially in recognition that veteran students tended to be older and less physically able, so the financial contributions made by veteran students did not constitute bribery. The representative asserted that the February 2004 OIG report cannot be afforded the probative value of an OIG field examination since it essentially adopted and endorsed the result of an earlier Compliance Survey by the RO (which the representative insists was illegal and "retaliatory"). The representative argued that the Board in this case must consider witness testimony provided in a videoconference hearing from the Manila RO in September 2007 in the case of an appellant other than the present Veteran. The representative argued that the attendance standards and record-keeping requirements cited in the overpayments were contrary to the longstanding contract between RMTU and VA in existence since 1998. Analysis The Veteran is challenging the validity of the overpayment in the amount of $18,951.00, and, in the alternative, seeking a waiver of recovery of that overpayment. He essentially contends that he regularly attended classes at RMTU, and that he never intended or took action to defraud the government by receiving educational assistance benefits to which he was not entitled. The Veteran had been previously determined to be eligible for Chapter 30 education benefits. Therefore, he was entitled to a monthly benefit for the period of time he was enrolled in, and satisfactorily pursing an approved program of education. 38 U.S.C.A. § 3014 (West 2002); 38 C.F.R. § 21.7070 (2005). The term "attendance" means the presence of a veteran (i) in the class where the approved course is being taught in which he is enrolled, or (ii) at a training establishment, or (iii) any other place of instruction, training or study designated by the educational institution or training establishment where the veteran is enrolled and is pursuing a program of education. 38 C.F.R. § 20.7042(b)(2). As discussed in detail above, investigations conducted by the Manila RO and the VA OIG in San Francisco revealed that 60 veterans attending RMTU, including the Veteran who is the present appellant, were part of a scheme whereby they received passing grades in return for providing monetary donations and other gifts to the school, even though they did not regularly attend classes. As determined by the OIG, this scheme was intended to allow the veterans to continue to receive VA educational assistance benefits based on their enrollment at RMTU. The evidence of this scheme includes the testimony of professors and instructors, who indicated that the veterans never attended classes and were receiving passing grades in return for their donations; and the testimony of non-veteran students, who also indicated that the veterans did not attend classes, but still received course credit in return for their donations. As noted above, the Veteran was specifically identified in deposition testimony as one of the veteran students who did not attend classes. The November 2010 Memorandum Decision by the Court directed the Board to consider whether there is any specific evidence in the May 2003 investigative report or witness statements that the Veteran, specifically, had not attended class, bribed an instructor or participated in any ongoing, fraudulent scheme. There is no evidence of record showing that the Veteran ever directly bribed an individual instructor; rather, the Veteran has been implicated in a scheme in which veteran students were excused from class based on their monetary and material contributions. More significantly, since the issue on appeal is class attendance, the Veteran was specifically identified in several depositions as having not attended the classes for which he received VA education benefits, and there is shown to have been an ongoing scheme at RMTU, involving numerous veteran students and faculty members, to defraud VA by doing exactly that. The Board finds the record contains ample evidence that the Veteran did not in fact attend the classes for which he received VA education benefits. The Board notes at this point that the file contains numerous depositions from students and faculty members of RMTU, some of which support the assertions of the Veteran (to the effect that veteran students attended class and received no unduly favorable treatment) and some of which support the contrary findings of the Compliance Surveys. The Board has "the authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1447, 1481 (Fed. Cir. 1997). In the evaluation of evidence, VA adjudicators may properly consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza, 7 Vet. App. 498. The Board may not ignore a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; personal interest may, however, affect the credibility of the evidence. Pond v. West, 12 Vet. App. 341, 345 ((1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Although the Veteran has asserted that he did, in fact, attend courses at RMTU, the Board finds that these assertions lack credibility, in light of the testimony provided by the faculty members and non-veteran students at that school, and the findings of both the Manila RO and OIG. In this regard, the Board particularly notes the Veteran's contention that he was completely unaware of any student ever having received passing grades at that school without having attended classes. It is clear from the findings of the Manila RO and the OIG that the practice of veteran students not having to attend classes was widely known and had been routine practice for many years at that school, to the point where veterans who attended class were intimidated by veterans who did not. Although there is no direct evidence pointing to the Veteran's knowing participation in the scheme, it strains to think that he could have attended that school for two years without having been aware of the practice, or that he was not at least a passive-but-willing participant in receiving VA benefits to which he was not entitled. In regard to the depositions from veteran students and RMTU faculty supporting the Veteran's contentions, the Board finds that such depositions are tainted by self-interest in that the other veteran students have monetary interest in restoration of the money subject to overpayment while the RMTU faculty members have monetary interest in restoration of RMTU to VA-approved status. Further, as noted below, the depositions of RMTU faculty are internally inconsistent with earlier statements made by the same faculty members. The Board emphasizes that the issue on appeal is not a criminal fraud investigation, in which the burden is on VA to show that the Veteran was a knowing member of an active conspiracy. The issue on appeal, simply, is whether the Veteran received VA benefits to which he was not entitled (in this case, education benefits for classes he did not attend). The Board finds the Veteran did so. The Veteran's representative has argued that RMTU's practice of excusing veterans from class was in recognition of their inability to speak Tagalog, and that the practice of excusing them from practical exercise was in recognition of the fact that veteran students tended to be older and less physically able than the younger non-veteran students. Thus, the double standard afforded the veteran students was innocent, and the monetary and material contributions of veteran students did constitute quid-pro-quo. The Board disagrees. The depositions favorable the Veteran, submitted by RMTU faculty members, do not cite language as being a basis for the relatively favorable conditions afforded veteran students. In regard to veterans being less physically able than non-veterans, such an assertion to be valid would necessarily be made on a case-by-case basis; if indeed RMTU had a blanket policy of generally exempting all veterans from practical exercises regardless of their individual capacity, as the representative appears to admit, then such exemption merely supports the conclusions of the Compliance Survey that veteran students did not participate in classes for which they received VA education benefits. The Veteran's representative has argued that in adjudicating the merits of this appeal the Board must consider witness testimony received during a videoconference hearing from the Manila RO in September 2007 that concerned the appeal of a different veteran whose appeal arose in similar circumstances to the appeal before the Board. The Board disagrees. The Board has repeatedly advised the representative that cases before the Board are considered on an individual basis, and hearings are similarly conducted on an individual basis. If the representative wanted to obtain depositions from the persons who testified on that occasion, and submit those depositions for consideration the present case, he had every opportunity to do so. The Board cannot and will not apply witness testimony submitted in the specific case of one appellant toward resolution of a different appeal before the Board. The November 2010 Memorandum Decision by the Court directed the Board to consider whether the Veteran's loss of educational benefits was the "pre-determined" outcome of the investigation, in light of the fact he was not named in the summary of the May 2003 investigation. The Board finds on review that although the Veteran was not named in the summary, he was demonstrably identified by name during the conduct of that investigation, and an investigator made the specific recommendation in May 2003 that the Veteran be considered for overpayment action. The Veteran was advised of the overpayment in July 2003, and the overpayment action on appeal was made in April 2004. The omission of the Veteran's name from the summary report, and the timing of the action in general, does not show "pre-determination." The November 2010 Memorandum Decision by the Court directed the Board to consider whether the RO had erred in refusing to issue subpoenas to witnesses the Veteran requested to appeal at his NOD hearing. This allegation may pertain to some other veterans who are clients of the Veteran's attorney, but the Board cannot find that such purported "refusal" has any application in this case. The Veteran whose claim is on appeal did not have an NOD hearing and has not requested a hearing before the Board in the Manila RO or by videoconference from the Manila RO. Therefore, the Board can find no error on the part of the RO in regard to subpoenas that are applicable to the case herein decided. The November 2010 Memorandum Decision by the Court directed the Board to consider whether the February 2003 compliance survey and the May 2003 investigation by the RO were illegal in that they were allegedly performed by VA personnel who had not received the mandatory training by VA to conduct such a field examination. The Board cannot determine, based on the current record, what training had been received by every individual member of the investigating teams on those occasions. However, the Compliance Survey that was performed in September 2012 in compliance with the Board's remand demonstrates that the VA personnel who performed those earlier surveys were experienced and competent, and the Veteran's representative has presented no objective evidence to the contrary. This finding is reinforced by the endorsement of the OIG, which is an arm of VA that is clearly qualified to recognize whether an investigation or survey has been competently performed. In sum, the absence of information regarding the individual training qualifications of the members of the survey team does not serve to invalidate the findings of those surveys. The Board will at this time address the various allegations made by the Veteran's representative that the Compliance Surveys were somehow unfair or outside the bounds of VA's contract with the school. The record shows that the October 2002 Education Compliance Survey Report was in all respects a routine survey that was performed while the students were on break, but the survey uncovered discrepancies warranting further investigation. At that time, the school Registrar was specifically advised that VA reserved the right to conduct unannounced visits to check actual school attendance of the student-beneficiaries or take measures to help safeguard the integrity of the VA education program. Thereafter, the February 2003 Compliance Survey revealed serious deficiencies, and in April 2003 the school was sent a letter advising that a formal investigation would be performed the following month; the notice gave detailed notice of how the investigation would be performed and who would be interviewed. The investigation was thereupon performed in May 2003. The Board finds nothing in the sequence of these Compliance Surveys and inspections that serves to invalidate the probative value of the findings therein. In order to discredit the conduct of the Compliance Survey, the Veteran's representative submitted statements from nine RMTU faculty in March 2005 that essentially state that they never gave veterans credit for class work not performed and that veterans were required to attend all classes. However, eight of those faculty members gave different answers during deposition in May 2003. For example, in May 2003 EM stated that veterans were not required to attend classes regularly; RR and AF stated that veterans and non-veterans were segregated at RMTU and that veterans did course assignments by take-home rather than by attending class; MP stated she would seldom see veteran students; NM stated that veterans only needed to share or contribute to project expenses; DP stated he would give veterans the option to stay for class lecture or to depart, and that veterans usually chose to depart; AF acknowledged "different standards" for VA students; and, TDR stated he did not require VA students to attend class, at the direction of the Dean. These statements are directly inconsistent with depositions made by the same deponents in March 2005. The Board concludes that the depositions dated in March 2005, being internally and externally inconsistent with the other depositions of record, are not credible. The Veteran's representative has maintained that the February 2004 OIG report should not be considered because it was conducted "ex post facto" of the July 2003 creation of the overpayment. The Board disagrees. The overpayment was created specifically as a result of the Compliance Survey in May 2003. By attacking the circumstances and credibility of that Compliance Survey, the representative has opened the door to consideration of the February 2004 OIG report, which discussed the circumstances in which the Compliance Survey was conducted and the validity of the conclusions drawn therein. Although the representative hints that the RO solicited the OIG report to bolster its own case, the evidence shows that the RO referred the case to the OIG to consider whether criminal charges for fraud should be pursued. There is no indication of any impropriety in the RO's referral of the case to the OIG. In order to discredit the OIG report, the Veteran's representative submitted two copies of the VA OIG Semiannual Report to Congress, in which the investigation is not cited. The evident intent of the representative is to demonstrate that no OIG investigation ever happened. However, the OIG Semiannual Reports cite the results of criminal cases handled by OIG. In the case against students at RMTU, a decision was made to not pursue criminal charges due to the difficulty in pursuing prosecution in the Philippines. Given that criminal charges were not brought, the absence of the investigation from the OIG Semiannual Reports is not surprising and does not discredit the findings of that report. One of the representative's most troubling assertions is that the May 2003 investigation was tainted because it was performed because VA officials had not been paid the expected bribes beforehand; the representative also asserts that the VA investigators made adverse determinations against all 60 veteran students in retaliation for not having been paid the expected bribes. The November 2010 Memorandum Decision by the Court directed the Board to consider whether VA had erred in failing to investigate allegations of bribery made against regional police officials in connection with the May 2003 investigation. In response to the allegations that VA officials solicited bribes, the Board finds that the only such evidence is the self-serving assertions of those recipients who were identified by the investigation and accordingly lost their benefits. The VA OIG, which is the agency specifically tasked to investigate malfeasance on the part of VA employees, stated in December 2004 that the overwhelming nature of the evidence against the aggrieved veterans, and the strong motivation of such veterans to discredit the investigation that had uncovered their fraudulent scheme, made their allegations not credible. Similar findings were made in the Compliance Survey in September 2012. The generalized allegation of solicitation of a bribe must be weighed against the other evidence of record, to include the numerous depositions from faculty members and non-veteran students indicating that the veteran students did not attend classes, and the specific findings of fraud were that were made by both the Manila RO and the OIG in San Francisco. The purported solicitation of a bribe by VA employees, and the purported desire for retaliation by those VA employees when the bribe was not forthcoming, does not explain the substantial amount of evidence obtained by that RO of the scheme that existed in RMTU, as documented by depositions by disinterested parties. These depositions and other documents created as a result of their investigation were independently reviewed by the OIG in San Francisco, which found no indication of solicitation of bribes by VA officials. The Veteran's representative has made other arguments regarding the manner in which the overpayments were discovered, but these clearly do not accurately reflect the actions of the Manila RO. For example, during the January 2007 hearing the representative argued that the October 2002 and February 2003 compliance reports had revealed the attendance of the veterans at RMTU to be satisfactory, and that no basis for an overpayment was found. The representative indicated that it was only in May 2003 that the veterans were found to have not attended; the representative complained that the same VA personnel were involved in all investigations, and that it did not make sense that they would "all of a sudden" find that the students were not attending. However, the Board finds the representative's argument to be a gross mischaracterization of the results of the October 2002 and February 2003 compliance surveys. The October 2002 survey did not result in a specific finding that the veterans were failing to attend classes, but neither did the survey affirmatively find that they were attending classes, as the representative has claimed. In fact, that survey revealed significant discrepancies in of each of the files that were reviewed, and the investigators specifically noted that the addresses of several of those veterans raised a question as to whether they could practically be attending classes on a regular basis. Further discrepancies were found in all 60 veterans' records in February 2003, and the investigators again expressed concern that the veterans may not be attending classes. It was based on these discrepancies that the more detailed investigation was conducted in May 2003. Thus, while the October 2002 and February 2003 compliance surveys did not yield enough information for the Manila RO to yet conclusively determine that overpayments were due, the RO investigators had discovered enough discrepancies in the files to raise questions as to whether the veterans had been attending classes. For this reason, the Board finds that it is clearly disingenuous for the representative to assert that the RO affirmatively found during those earlier surveys that the students were attending, or to claim that the RO personnel "all of sudden" found in May 2003 that the students were not attending. The Veteran's representative recently submitted arguments asserting that VA had violated various "due process" and "equal protection" guarantees afforded the Veteran under the U.S. Constitution. These assertions are generally puffery and do not cite any specific due process or equal protection violation to which the Board can respond. The representative did assert that there was an "equal protection" violation inherent in that the Veteran (and the representative's other clients) were effectively punished for participation in a conspiracy to defraud VA while earlier beneficiaries, who were no longer students, were not punished. The Board can find no "equal protection" violation when all the active members of an ongoing conspiracy are equally punished. The record shows that a determination was made at the time that it would not be feasible to pursue criminal charges in the Philippines, so overpayments were properly created against current beneficiaries while previous participants were spared. Similarly, the Veteran's representative cited as a "due process" violation that VA had approved withholding of the amount of the overpayment from Federal benefits (such as military retirement) prior to adjudication of the appeal. The Board simply notes that VA procedures require the RO to initiate recoupment of overpayments immediately, unless a waiver of overpayment is granted. The Board is required to apply the existing statutes and their implementing regulations as written; if the Veteran asserts a legal challenge against an existing statute or regulation his redress is not before the Board. The Veteran's representative has complained that the student attendance and record-keeping requirements being enforced by the overpayment action are contrary to a longstanding agreement between VA and RMTU. The evidence of record shows that the original name for RMTU was Zambales National Agricultural School, which had a strict attendance policy and agreed in its 1976 contract with VA to maintain exact attendance and progress records. The school was subsequently renamed Western Luzon Agricultural College, with which VA signed an agreement in 1989 (cited by the Veteran's representative) committing the school to a less-stringent policy of keeping "adequate" records and requiring at least one hour per week of in-seat classroom attendance and/or three hours per week of laboratory attendance for each hour of VA benefits certified. The school name was later changed to RMTU. The Board can find nothing in the overpayment action that is inconsistent with the 1989 agreement. The Compliance Surveys demonstrate that the records being kept on attendance of VA students was not "adequate" by any stretch of the imagination (school officials were unable to produce attendance records when asked to do so), and that veteran students were effectually excused from any in-seat classroom attendance or laboratory work whatsoever. Thus, even by the loose standards of the 1989 agreement, the overpayment action on appeal was thoroughly justified. The Veteran's representative recently alleged CUE in a number of actions by the RO (alleging, for example, CUE in the conduct of the investigation) and CUE by the Board (in its June 2007 decision). A claim of CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). The RO's decision is on appeal and not yet final, so there is no CUE issue raised on appeal for the Board to consider. See Link v. West, 12 Vet. App. 39, 45 (1998). The Veteran has submitted documentation from RMTU in support of his appeal, including Enrollment Certifications; letters from the Registrar's office indicating that he had passed all classes; and a transcript of passing grades. However, it was implicit in the scheme discovered by the Manila RO, and later confirmed by the OIG, that the veteran students at RMTU received course credit in return for the donations and gifts that they provided the school, and the depositions of non-veteran students, which show the RMTU Dean coached them to lie to VA investigators, show that the RMTU faculty was complicit in this deceit. Certainly, it is clear that RMTU routinely confirmed to the RO that these students were enrolled, attending classes, and receiving passing grades; the RMTU documentation to that effect, such as transcripts or enrollment certifications, in no way contradicts the findings of the Manila RO or the OIG. The Veteran's representative recently asserted that the February 2004 OIG report cannot be afforded the probative value of an OIG field examination since it essentially adopted and endorsed the result of an earlier Compliance Survey by the RO. The Board disagrees. The February 2004 OIG report clearly details that the OIG findings were based in large part, but not exclusively, on the results of the earlier RO compliance audits in October 2002 and February 2003; the Resident Agent in Charge detailed the reasons he accepted the validity of those compliance audits. The question of whether the OIG conducted a field examination under its own auspices is irrelevant to the probative value afforded by the Board to the February 2004 OIG report. In support of the Veteran's claim, his representative has cited to the provisions of 38 C.F.R. § 21.7153(c), which defines "satisfactory attendance" on the part of a beneficiary as meeting the regularly prescribed standards of the educational institution in which he is enrolled. The representative essentially argues that, because the school accepted the Veteran's attendance as adequate, VA is obligated to do so regardless of the frequency of the Veteran's actual attendance. However, as discussed in detail above, there is persuasive testimony of record from faculty members and non-veteran students at RMTU that the veteran students were not being held to the same standards of attendance or class participation that the non-veteran students were, and that this was due to the donations made to the school by the veteran students. Under these circumstances, it cannot be said that the veteran students were meeting the regularly prescribed standards of RMTU as contemplated by 38 C.F.R. § 21.7153(c). Further, it is implicit in all of the statutes and regulations dealing with the administration of Chapter 30 benefits that a veteran beneficiary be pursuing a meaningful program of education in exchange for his VA benefits. As noted, the scheme discovered by the Manila RO involved beneficiaries who received course credit and passing grades without having to attend classes or otherwise participate in class in return for monetary donations and other gifts they made to the university. It is difficult for the Board to imagine any argument that could justify this scheme as being consistent with the purpose of Chapter 30 benefits. To the contrary, the participants of the scheme, including this veteran, either must have known, or should have known, that receiving VA benefits based on their enrollment at RMTU amounted to defrauding the government. In the Board's opinion, the school's complicity does not in any way mitigate the actions of the veteran in participating in this scheme. In summary, as discovered by the investigations of the Manila RO and the OIG highlighted above, the Board finds that the Veteran was paid for pursuing a program of education at RMTU but that he did not actually attend classes. 38 C.F.R. § 20.7042(b)(2). An overpayment of $18,951.00 was properly created as a result of the payment for courses at that university. The Veteran is liable for the resultant overpayment debt. 38 C.F.R. § 21.7144. Having found the debt to be valid, the Board will turn to the Veteran's request for a waiver of recovery of the overpayment. A waiver of recovery of an overpayment of disability pension benefits may be authorized in a case in which recovery of the overpayment would be against equity and good conscience. 38 C.F.R. § 1.965(a). However, recovery of an overpayment of VA benefits may not be waived where there is an indication of fraud, misrepresentation, or bad faith. 38 U.S.C.A. § 5302(c); 38 C.F.R. § 1.965(b). Bad faith generally is an unfair or deceptive dealing by one who seeks to gain at another's expense; there need not be an actual fraudulent intent, but merely an intent to seek an unfair advantage with knowledge of the likely consequences, and a subsequent loss to the Government. 38 C.F.R. § 1.965(b)(2) (2005). In light of the circumstances of the scheme in place at RMTU, which involved the veteran students paying for various expenses the school could not afford, and providing cash payments directly to professors and school administration officials, in return for not having to actually attend or participate in class assignments, the Board finds that the Veteran was clearly acting in bad faith when he continued to apply for and receive VA educational assistance benefits based on his enrollment at RMTU. In essence, the Board finds that the Veteran either knew or should have known that his participation in this scheme resulted in his unfairly obtaining VA benefits to which he was not entitled. 38 C.F.R. § 1.965(b)(2). As "bad faith" has been shown in the creation of the debt, waiver of recovery of the debt is precluded by law. 38 U.S.C.A. § 5302(c); 38 C.F.R. §§ 1.962, 1.965. Hence, the principles of equity and good conscience are not for application. In arriving at the decisions above the Board has considered the benefit-of-the-doubt rule. However, the preponderance of the evidence in this case weighs against the claim. The benefit-of-the-doubt rule accordingly does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER An overpayment of VA educational assistance benefits in the amount of $18,951.00 was properly created. Entitlement to a waiver of recovery of the overpayment of $18,951.00 in VA educational assistance benefits is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs