Citation Nr: 1329543 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 10-47 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Waiver of recovery of an overpayment of nonservice-connected pension benefits in the amount of $4,660. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from January 1955 to August 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a decision dated in February 2009 by the Pension Management Center of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Virtual VA paperless claims processing system contains several documents pertinent to this appeal that are not associated with the Veteran's VA paper claims file. This includes an August 2009 decision by the VA Debt Management Center Committee on Waivers and Compromises, by which a waiver of recovery of the debt at issue in this matter, in the amount of $4,660, was granted. Although the matter on appeal has been characterized in a September 2010 statement of the case as "reduction of disability pension award," the Board finds that the benefit sought by the Veteran in this appeal is a waiver of recovery of an overpayment of nonservice-connected pension benefits in the amount of $4,660. The reasons for this recharacterization of the issue on appeal are discussed at length below. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has not questioned the validity of the debt due to overpayment of $4,660 of nonservice-connected pension benefits at issue in this matter or the validity of the reduction in his nonservice-connected pension payments due to his receipt of Social Security Administration (SSA) disability benefits, but rather has sought waiver of recovery by VA of the debt created by the overpayment. 2. In an August 2009 decision the DMC Committee on Waivers and Compromises granted in full the Veteran's claim for a waiver of recovery of an overpayment of $4,660. 3. There remain no allegations of specific error of fact or law in the determination being appealed. CONCLUSION OF LAW The criteria for dismissal of the Veteran's appeal are met. 38 U.S.C.A. § 7105(d)(5) (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board of Veterans' Appeals may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See 38 U.S.C.A. § 7105(d)(5). In September 2008 the Pension Management Center at the RO in St. Paul, Minnesota, sent a letter to the Veteran proposing that his monthly nonservice-connected pension benefits payment be reduced. The RO explained that it had received information from a data match with the Social Security Administration (SSA) concerning his monthly SSA entitlement. Based on this information, the RO proposed to reduce his monthly payment benefits by the amount of his monthly SSA disability benefit award, effective from November 2005. See generally 38 C.F.R. §§ 3.3(a)(3)(improved pension benefits), 3.105(f) (reduction in evaluation-pension), 3.272(a)-(x) (exclusions from income for the purpose of calculating improved nonservice-connected pension benefits; the enumerated exclusions do not include SSA disability benefits payments). In October 2008, the Veteran replied, requesting that the RO see attached letters he had received from the SSA "and make the appropriate adjustments to my pension to avoid any further debt." In February 2009, the RO put into effect the proposed reduction of nonservice-connected pension benefits, effective from November 1, 2005. The RO informed the Veteran that it had created an overpayment in his account because the information VA received showed that it had paid him too much. He was informed that he would receive a separate letter, which would explain how much he had been overpaid, and how he could repay this debt. In his May 2009 notice of disagreement the Veteran wrote that he disagreed with the decision to reduce his nonservice-connected pension. He wrote that he was not understanding how he had encountered this overpayment. He stated that he had been very ill and had people in and out of his house taking care of his cleaning, so that the earlier letter described by the RO could have been accidentally thrown away, and that apparently he didn't respond. The Veteran elaborated: This is actually a plea for VA to overlook my debt, I truly do not understand why or how I encountered the debt, it was not intentional. Please take at the attached financial status report, you will see that to repay this debt will cause an undue burden on me. I am unable to work [due] to my age and diabetes. Apparently I missed the time frame to request a waiver, but I'm asking that you reconsider the information provided and provide me with a waiver for this debt and reinstate my pension. I truly can't afford to repay. I request a de novo review. I do intend to appeal. As noted above, and notwithstanding the Veteran's May 2009 understanding and recollection that he had not seen or responded to the September 2008 RO letter, he in fact did respond in October 2008, by providing recent documentation from SSA and financial status information, and requesting that his VA pension benefits be adjusted to avoid any further debt. It appears from the claims file that his powers of recollection may be limited under his current life circumstances; however, it is equally evident that he understood and did not dispute the debt created by the reduction in his nonservice-connected pension benefits by reason of his receipt of unreported income in the form of SSA disability benefits. The Virtual VA claims file includes an August 2009 decision by the VA Debt Management Center Committee for Waivers and Compromises, by which a waiver of recovery of the debt at issue in this matter, in the amount of $4,660, was granted. (This decision and the supporting documentation are associated with the Virtual VA claims file but not the VA paper claims file.) See generally 38 U.S.C.A. § 5302(c) (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 C.F.R. § 1.963(a) (recovery of overpayment of any benefits made under laws administered by VA may be waived if recovery of the indebtedness from the payee who received such benefits would be against equity and good conscience). An October 2009 letter from the DMC informs the Veteran, in general language and with no supporting documentation, that "your request for waiver has been approved by the Committee on Waivers and Compromises." It is quite possible that the Veteran did not understand the full significance of this letter-that the waiver of recovery of his debt to VA created by VA's overpayment to him of nonservice-connected pension benefits in the full amount of $4,660 had been granted. In a September 2010 statement of the case, the RO informed the Veteran that it had had reduced his pension based on his SSA income, and had in a February 2009 letter provided more specific information as to his award rate and payment change date, and how his benefit was calculated. In October 2010, the Veteran wrote in his substantive appeal: At the time VA sent the letter my medical condition was poor, this is why I did not respond. [The Board notes again that the Veteran did in fact promptly respond to the September 2008 RO letter in October 2008.] I was by no means trying to defraud the VA or make money I was no[t] entitled to. I live on a fixed income and this has hurt my finances. I would use the money to catch up on my bills. It is evident to the Board from a detailed review of the paper claims file and the Virtual VA claims file, based on a careful reading of the content and chronology of the correspondence sent to and received from the Veteran, that he did not dispute the validity of the debt at issue in this matter, or the validity of the reduction in his nonservice- connected pension benefits, but rather sought a waiver of recovery of the debt created by the overpayment of his nonservice-connected benefits for the period from November 2005 to February 2009. It appears that the Veteran may currently struggle with written language to some extent, but he made the nature of his claim very clear in his May 2009 notice of disagreement, in which he wrote, "This is actually a plea for VA to overlook my debt." As noted, the DMC Committee on Waivers and Compromises waived recovery of the overpayment of $4,660 in full in an August 2009 decision, of which the Veteran was informed by letter, perhaps too generally, in October 2009. In consideration of the above, and after review of all information and correspondence in the Virtual VA and paper VA claims files, the Board finds that there remains no allegation of specific error of fact or law in the determination being appealed. See 38 U.S.C.A. § 7105(d)(5); 38 C.F.R. § 20.101(d). The Veteran has not asserted that the reduction in nonservice-connected pension benefits due to his receipt of SSA disability benefits was in error, or that the debt at issue in this appeal was in error. Rather, in October 2008 he submitted further information from SSA and requested that his pension be adjusted accordingly to avoid the creation of any further debt, and in May 2009 he specifically stated that his claim was "actually a plea for VA to overlook my debt." Because VA has waived recovery of the debt at issue in this appeal in its entirety, as requested by the Veteran, it is the judgment of the Board that this appeal should be dismissed for lack of any remaining allegation of specific error of fact or law. 38 U.S.C.A. § 7105(d)(5) (Board of Veterans' Appeals may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed). ORDER The appeal is dismissed. ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs