Citation Nr: 1326461 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-12 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to waiver of the recovery of an advanced payment of $3,000.00 for Post-9/11 GI Bill (Chapter 33) education benefits, to include whether the debt was properly created. ATTORNEY FOR THE BOARD R. Giannecchini, Counsel REMAND The appellant had active duty for training from November 2003 to June 2004, as well as unverified active military service beginning May 11, 2005. (The evidence of record appears to reflect that the appellant is currently on active duty.) This matter comes before the Board of Veterans' Appeals (Board) on appeal following a July 2010 decision by the Committee on Waivers and Compromises (COWC) at the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In that decision, the COWC denied the appellant's request for a waiver of the debt of an advance payment of $3000.00 for education benefits under Chapter 33. A request for waiver of indebtedness must be made within 180 days following the date of notice of the indebtedness issued by VA to the debtor. 38 C.F.R. § 1.962(b)(2) (2012). In the present case, the appellant was notified of his indebtedness by VA's Debt Management Center (DMC) in March 2010. He requested waiver of the debt in May 2010. By way of background, sometime apparently in 2009, the appellant electronically applied for VA educational benefits. His application identified that he had been on active duty since May 11, 2005. It was also noted that he intended to start college classes on May 22, 2009 at Austin Peay State University in Clarksville, Tennessee. In a November 2009 letter from the St. Louis RO, the appellant was notified that he had been found eligible for education benefits. At the time of the appellant's education eligibility award, VA authorized advance payments up to $3,000.00 for veterans who applied for VA education benefits and who had not yet received their monthly education payments. At VA's website (www.gibill.va.gov/advpay), a questions and answers (Q&A) section noted that advance payments were only authorized for veterans who had not yet received their monthly payments for the fall 2009 school term. Furthermore, the Q&A section noted the following regarding repayment: The payment will be recouped from your future VA [educational] payments. However, if you stop attending school during the semester or reduce your course load to a level that affects your monthly benefit, full recoupment by VA may not be possible, and you will have to repay any remaining balance. It is apparent from the July 2010 decision letter associated with the CWOC action and the appellant's statements regarding the identified debt, that the appellant was awarded the $3,000.00 advanced payment. The decision letter notes the following, When you requested the advance, you certified that you were enrolled in school for the [f]all 2009 term, you were eligible for VA education benefits, and you had not yet received payments due you for [f]all 2009. You also certified that you understood you would have to repay the advance or any duplicate payment(s) made to you. The July 2010 decision letter went on to state that VA had no evidence that the appellant was either enrolled in school for the fall 2009 term or that he had applied for VA educational benefits based on any such enrollment. In his May 2010 request for waiver statement, the appellant commented that he felt that he had received the money because he had been entitled to it and if that had not been the case then it had been no fault of his that he had received the money. The appellant also noted that he was requesting waiver of the debt because the money had already been used to pay for "education[-]related expenses" and that to otherwise have to repay the money would result in a financial hardship. In the present case, the appellant is requesting a waiver, based on financial hardship, of a payment in the amount of $3,000.00 he received as an advanced payment of VA educational benefits. The appellant is also challenging the validity of the debt based on VA's alleged administrative error in awarding him the $3,000.00. The RO's March 2011 statement of the case (SOC) considered both issues. Recovery of overpayment of any benefits made under laws administered by VA may be waived if there is no indication of fraud, misrepresentation, or bad faith on the part of the person or persons having an interest in obtaining the waiver. 38 U.S.C.A. § 5302(c) (West 2002); 38 C.F.R. § 1.963(a) (2012). In the present case, the Committee, in its July 2010 decision, did find bad faith on the part of the appellant. In cases where there is no indication of fraud, misrepresentation, or bad faith in the record, the indebtedness shall be waived if the recovery of the overpayment would be against equity and good conscience. 38 U.S.C.A. § 5301(a) (West 2002 & Supp. 2013); 38 C.F.R. §§ 1.962, 1.965 (2012). Consideration of equity and good conscience is intended to reach a result that is not unduly favorable or adverse to either the claimant or the Government. It is intended to achieve a result that is fair. 38 C.F.R. § 1.965(a). Six non-exclusive elements are set forth in the regulations that must be addressed to determine whether the facts and circumstances in a particular case dictate that collection of an overpayment would be against equity and good conscience. The following six elements, which are not intended to be all inclusive consist of: (1) the fault of the debtor; (2) balancing of faults between the debtor and VA; (3) undue hardship of collection on the debtor; (4) a defeat of the purpose of an existing benefit to the veteran; (5) the unjust enrichment of the veteran; and (6) whether the veteran changed positions to his/her detriment in reliance upon a granted VA benefit. 38 U.S.C.A. § 5302; 38 C.F.R. § 1.965(a). In the present case, both the July 2010 COWC decision and the March 2011 SOC note that the appellant had certified that he was aware that he would be required to pay back the $3,000.00 advance payment. None of the documentation associated with the appellant's request and receipt of the $3,000.00 advanced payment is associated with the record on appeal. As such, on remand, the agency of original jurisdiction (AOJ) should obtain the documentation (application, forms, notice letters, etc.) associated with the $3,000.00 advance payment. Likewise, in his request for waiver, received by the DMC in May 2010, the appellant volunteered to submit his original documents (letters and forms) associated with the advanced payment. The AOJ should request that the appellant submit copies of any documentation he may have that is associated with the $3,000.00 advance payment. Accordingly, the case is REMANDED for the following action: 1. Obtain all documentation (application, forms, notice letters, etc.) associated with VA's awarding the appellant the $3,000.00 advance payment. 2. Request that the appellant submit copies of any documentation currently in his possession associated with VA's $3,000.00 advance payment award to him. 3. Request that the appellant complete and return an updated VA Form 5655 (Financial Status Report). The appellant should be informed as to the relevancy of financial information in determining a claim for waiver of an overpayment. 4. Thereafter, the matter of the validity of the debt and waiver of the overpayment in the amount of $3,000.00 should be re-adjudicated. If the issues continue to be denied, the appellant should be provided with a supplemental statement of the case (SSOC), to include citation and notice of the provisions of 38 C.F.R. § 1.965 (2012), and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).