Citation Nr: 1323419 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 10-01 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a waiver of indebtedness for an overpayment in the amount of $9,041.95. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to November 1975, with six months and 28 days of active duty service. This matter is on appeal from a May 2009 decision by the Debt Management Center in St. Paul, Minnesota. Jurisdiction over the appeal is currently with the Committee on Waivers and Compromises at the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. This appeal was remanded by the Board in June 2011 for further development and is now ready for disposition. FINDINGS OF FACT 1. The appellant has a valid debt to VA in the amount of $9,041.95. 2. The VA Debt Management Center sent the Veteran a letter dated November 27, 2005, advising him that, due to his incarceration, he was not entitled to pension benefits, and an overpayment had been created; he was notified that she had 180 days to request a waiver of recovery of the indebtedness. 3. The Veteran's request for a waiver was received in March 2009. CONCLUSION OF LAW The correct amount of the Veteran's debt to VA due to overpayment of pension benefits is properly computed to be $9,041.95, but his request for waiver of recovery of an overpayment of compensation benefits in the calculated amount of $9,041.95 was not timely. 38 U.S.C.A. § 5302 (West 2002 & Supp. 2012); 38 C.F.R. § 1.963 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. In this case, the Veteran's claims involve the validity of a creation of an overpayment and a request for waiver of recovery of overpayment, involving Chapter 53 of Title 38 of the United States Code. Therefore, the duties to notify and assist provisions of the VCAA do not apply. Lueras v. Principi, 18 Vet. App. 435 (2004); Barger v. Principi, 16 Vet. App. 132, 138 (2002); see also 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). In any event, the Veteran has received all the requisite notice to ensure that he is not prejudiced by the adjudication of the claim. Specifically, he received notice of his procedural rights prior to the termination of benefits via a letter in March 2000, which included the RO's proposal to terminate his benefits due to his incarceration. This letter also provided him with notice of the potential for a future overpayment and of his right to a hearing to present evidence on his behalf. Moreover, the Veteran received notice of the amount of overpayment calculated by the Debt Management Center in November 2005, and was given notice that he had 180 days to apply for a waiver of this overpayment. While this 180 day notice is not specifically contained in the claims file, the November 2005 letter clearly indicated that a notice of the Veteran's rights, which included notice of the 180 day filing period, was included in an attachment. In view of the presumption of regularity under which it is presumed that government officials "have properly discharged their official duties," see United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926), the Board presumes that proper enclosure was included with the November 2006 letter, and that the appellant was provided accurate information as to the 180 day notice period. Schoolman v. West, 12 Vet. App. 307, 310 (1999). Significantly, the Veteran has not asserted that this notice was not received. Finally, it is noted that this appeal was remanded by the Board in June 2011 for further development. Specifically, the Board instructed the RO to perform an audit of the benefits received by the Veteran that reflects the amount of pension paid, and the periods of the Veteran's incarceration. 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, the record now includes a review of the evidence withheld and, in conjunction with other recently acquired evidence, the Board is now able to adequately discern how the original overpayment was created, and whether the creation of this overpayment was accurate. It should be emphasized that strict compliance is not required of the Board's Remand instructions, but rather only substantial compliance. Here, the evidence that has been provided is sufficient to adjudicate the claim without prejudice to the Veteran. Indeed, for the reasons explained below, the amount of the overpayment has been partially reduced. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Hence, there is no prejudice to the Veteran by adjudicating this claim. Waiver of Overpayment According to the evidence of record, the Veteran has been in receipt of nonservice-connected pension since 1995. Although he was married for a certain period of time, he divorced on April 16, 2004, and has since been unmarried with no dependent children. In an October 2005 letter, the RO informed the Veteran that it had learned that he had been incarcerated since July 16, 2004, and that VA regulations prohibit payment of pension benefits while a veteran is incarcerated for a period greater than 60 days. Consequently, the RO proposed to discontinue the Veteran's pension, effective September 15, 2004. After receiving a letter in October 2005 from the Veteran, acknowledging that he was currently incarcerated, the RO responded in November 2005 that his pension was discontinued, effective September 15, 2004. Approximately two weeks later, the Veteran received a letter from the Debt Management Center in St. Paul, Minnesota, informing him that he had been provided excess benefits in the amount of $11,393.46. The Veteran submitted a letter in January 2006 indicating his disagreement with the amount of the calculated debt. In March 2009, shortly after his release from incarceration, the Veteran submitted a statement asserting that he was unable to repay the prior overpayment, and requested that his prior overpayment be waived. In May 2009, the Debt Management Center denied the Veteran's request for a waiver on the basis that it was not timely filed. The Veteran submitted a Notice of Disagreement to this decision in October 2009. Validity of Overpayment The Board must first consider whether a valid debt has been created before considering whether the Veteran may be entitled to waiver of the indebtedness. See Schaper v. Derwinski, 1 Vet. App. 430 (1991). In general, an overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled, and may arise from virtually any benefits program administered pursuant to VA law, including pension, compensation, dependency and indemnity compensation, or any other form of benefits. See 38 U.S.C.A. § 5302; 38 C.F.R. §§ 1.956(a), 1.962 (2012) Under 38 U.S.C.A. § 1505, if any individual to or for whom pension is being paid under VA regulations is imprisoned in a Federal, State or local penal institution as the result of conviction of a felony or misdemeanor, such pension payments will be discontinued effective on the 61st day of imprisonment following conviction. See also 38 C.F.R. § 3.666 (2012). In this case, the fact that the Veteran was incarcerated is not in dispute. Rather, it is his fundamental assertion that he was not incarcerated until December 10, 2004, and that his pension should not have been terminated until 61 days after that date. In support of this contention, he has submitted a September 2005 calculation of sentence completed by the Wisconsin State Department of Corrections. According to his document, while the Veteran was sentenced to four years of incarceration on July 29, 2005, he had already been incarcerated for 7 months and 19 days by that time. As such, according to his calculation, he was not incarcerated until December 10, 2004. While there was some apparent dispute whether this could be accepted as evidence, as it was not signed by the Veteran, it appears to be a document generated by a State government facility, and there is no reason to dispute its validity. Moreover, the fact that the Veteran was not incarcerated until December 10, 2005, was apparently conceded by the RO in a December 2011 letter, where it informed him that effective date of his termination of pension benefits was adjusted to February 9, 2005 (and 61 days after December 10, 2004). As the evidence of record makes clear that the Debt Management Center's overpayment calculation of $11,393.46 was based on an incorrect incarceration date of July 16, 2004, it follows that the calculated amount of overpayment is also inaccurate. Specifically, according to a November 2005 spreadsheet that is of record, the Veteran received $824.00 in pension benefits each month from September 1 through November 30, 2004, and $846.00 in pension benefits each month for the period from December 1, 2004 until the time benefits were actually stopped on October 31, 2005. Since the Veteran would have not been entitled to benefits for only the period from February 9 to October 31, 2005, the Board calculates that the actual amount of overpayment that was validly created for this period was $9,041.95. Waiver of Overpayment As a debt of $9,041.95 was found to be validly created, the Board turns to the issue of whether this debt may be waived. However, the Board determines that his request for a waiver was not timely filed, and consideration of entitlement to such a waiver is unnecessary. Specifically, under the applicable regulations, a request for waiver of a debt, other than for loan guaranty, shall only be considered if made within 180 days following the date of a notice of the indebtedness to the debtor. The 180-day period may be extended if the individual requesting waiver demonstrates that, as a result of an error by either VA or the postal authorities, or due to other circumstances beyond the debtor's control, there was a delay in such individual's receipt of the notification of indebtedness beyond the time customarily required for mailing, including forwarding. If the requester does substantiate that there was such a delay in the receipt of the notice of indebtedness, VA shall direct that the 180-day period be computed from the date of the requester's actual receipt of the notice of indebtedness. 38 C.F.R. § 1.963(b); see also 38 U.S.C.A. § 5302(a) (West 2002). Based on the evidence of record, the Board determines that the Veteran received notice of his overpayment in November 2005, and that his March 2009 request for a waiver was not timely submitted. Notably, it appears that notice of overpayment was sent to the representative rather than directly to the Veteran. However, in January 2006, the Veteran's representative submitted a statement indicating the Veteran's belief that the amount of his overpayment was incorrect, and it may be concluded from this correspondence that the Veteran was aware of the overpayment by January 2006, and the Board presumes that he was also notified of the 180 day time limit to request a waiver. The Board has given consideration to the Veteran's assertion in October 2009 that he had no access to his representative while he was incarcerated. However, this is contradicted by the evidence of record, since it is clear by the January 2006 representative's statement that there obviously had been some recent contact with the Veteran. Despite the fact that a request for a waiver could have been submitted at that time, there is no indication of an intent to do so. Moreover, there were no further communications from the Veteran until he reapplied for benefits upon his release from incarceration in August 2008. Therefore, the Board concludes that the Veteran received adequate notice of his overpayment, and had notice of the requirements to request a waiver of the overpayment in a timely manner. Moreover, the fact that neither he nor his representative submitted a request for a waiver for almost three years weighs against a finding that he would have filed such a request, but for his incarceration. Accordingly, the claim for a waiver of overpayment was not timely filed, and the appeal is denied. ORDER The appellant's debt due to VA as a result of an overpayment is properly computed to be $9,041.95, but his request for a waiver of the indebtedness is denied, as the request for waiver was not timely. The appeal is allowed to this extent only. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs