Citation Nr: 1329867 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 10-27 470A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a waiver of the recovery of an overpayment of VA vocational rehabilitation training subsistence allowance in the amount of $ 2,751.12, to include the question of whether the overpayment was properly created. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from July 1988 to November 2008. This appeal arises from an April 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. By that decision, the RO informed the Veteran that a debt of $2,751.12 had been created after his vocational rehabilitation subsistence allowance had been interrupted on December 31, 2009. The Veteran appealed the RO's decision to the Board. In March 2011, the Veteran testified before the undersigned at a hearing conducted at the above RO. A copy of the hearing transcript is of record. FINDINGS OF FACT 1. In November 2008, the Veteran was approved for Chapter 21 Vocational Rehabilitation benefits from May 1, 2009 to December 31, 2010 at the Professional Golfers Career College (PGCC) in Winter Park, Florida. 2. The Veteran was paid Educational Subsistence Allowance under Chapter 31 for a period of training at PGCC from May to December 2009. 3. In January 2010, the Veteran contacted the school and his Vocational Rehabilitation Counselor (VRC) to inform them that he would withdraw from formal coursework at PGCC and begin the professional certification process. 4. In a facsimile to VA and VA Form 22-1999(b), Notice of Change in Student Status, dated January 11, 2010, the certifying official at PGCC informed VA of the Veteran's intent to withdraw before the beginning of the school term in January 2010. 5. In April 2010, VA retroactively reduced the Veteran's award, effective December 31, 2009, the date he officially withdrew from formal education classes. This adjustment resulted in an overpayment of $2,751.12. 6. The RO reviewed the Veteran's request for a waiver of recovery of the overpayment on May 6, 2010, which is within 20 days of the appealed action in this case (i.e., April 6, 2010). 7. A June 2010 Disclosure Statement, prepared by the Veteran's VRC, and associated counseling notes, dated from January to May 2010, reflect that in early January 2010, the VRC made a determination to interrupt the Veteran's rehabilitation plan because of his intent to begin his professional certification process. 8. The creation of the $ 2,751.12 indebtedness of vocational rehabilitation training subsistence allowance benefits was due to sole VA administrative error. CONCLUSION OF LAW The overpayment of VA vocational rehabilitation training subsistence allowance in the amount of $2, 751.12 is an invalid indebtedness. 38 U.S.C.A. §§ 5107, 5112(b)(10) (West 2002); 38 C.F.R. §§ 3.500(b)(2) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). The Board notes that the provisions of law and regulations which set forth notice and assistance requirements on the part of VA, in the adjudication of certain claims, are not applicable to claims involving the validity of creations of overpayment or requests for waiver of recovery of overpayments. Lueras v. Principi, 18 Vet. App. 435 (2004); Barger v. Principi, 16 Vet. App. 132 (2002). II. Laws and Regulations The Veteran seeks an overpayment of VA vocational rehabilitation training subsistence allowance in the amount of $2,751.12, to include the validity of the debt. Pursuant to 38 U.S.C.A. § 5112(a), it is provided that except as otherwise provided in this section, the effective date of a reduction or discontinuance of compensation shall be fixed in accordance with the facts found. 38 U.S.C.A. § 5112(b)(10) provides otherwise, that the effective date of a reduction or discontinuance of compensation by reason of an erroneous award based solely on administrative error or error in judgment shall be the date of last payment. Likewise, 38 C.F.R. § 3.500(b)(2) provides that the effective date of reduction of VA benefits is "date of last payment on an erroneous award based solely on administrative error or error in judgment." The United States Court of Appeals for Veterans Claims has held that the issue of the validity of a debt is a threshold determination which must be made prior to a decision on a request for waiver of the indebtedness. Schaper v. Derwinski, 1 Vet. App. 430 (1991); see also VAOPGCPREC 6-98. The Veteran has asserted that VA is at fault in the creation of the debt. Pursuant to 38 U.S.C.A. § 5112(b)(10) and 38 C.F.R. § 3.500(b)(2), when an overpayment has been made "by reason of an erroneous award based solely on administrative error," the reduction of that award cannot be made retroactive to form an overpayment debt owed to VA from the recipient of the erroneous award. III. Merits Analysis The Veteran has not questioned the amount of the debt. Rather, he and his representative have asserted that the debt is invalid because it was created solely as a result of his VRC's negligence. He maintains that despite having informed PGCC and his VRC of his intent to withdraw from formal classes in December 2009 and enter into the professional certification process in January 2010, his VRC failed to cancel his Chapter 31 subsistence allowance. (See Veteran's Notice of Disagreement, received by VA in early May 2010). The Veteran asserts that he began his professional certification process in early January 2010 with his VRC's approval. The Veteran maintains that from January to March 2010, he continued to use his Chapter 31 subsistence allowance to defray costs for classes that he took for his ongoing certification program. He contends that his VRC counselor did not inform him that he was not entitled to these benefits until April 6, 2010. Id. He maintains that he did not use the March 2010 subsistence benefits, but that he is entitled to their recoupment because VA collected the debt prior to providing him with a chance to appeal his overpayment. (See March 2011 Transcript (T.) at pages (pgs. 9-12). The first question to be addressed is the validity of the debt. The Board finds, for reasons that are outlined in more detail below, that error by VA was the cause of the overpayment of additional vocational rehabilitation training subsistence allowance benefits in the amount of $2,751.12 in this case. In November 2008, the Veteran sought vocational rehabilitation training benefits in professional golf management and instruction from May 1, 2009 to December 31, 2010 which were approved. Included in his award was subsistence allowance. (See VA Form 28-8872, Rehabilitation Plan, dated November 12, 2008). The Veteran also signed a copy of VA's Vocational Rehabilitation Guidelines, wherein he acknowledged that he could keep his subsistence allowance as long as he made a good faith effort in training. As part of his good faith effort in training, the Veteran was instructed that he had to notify both his case manager and VRC if he stopped, reduced or did not complete his course work or lost a dependent. He was also informed that he was entitled to receive benefits only under one (1) program for his training (i.e., the Veteran would not be entitled to benefits under both the Montgomery GI Bill and the Vocational Rehabilitation Program. (See VA's Vocational Rehabilitation Guidelines, dated and signed by the Veteran and his VRC on November 12, 2008). Counseling notes, prepared by the Veteran's VRC, dated January 7, 2010, reflect that the VRC had spoken with the Veteran via telephone and had knowledge of the Veteran's intent to withdraw from his formal coursework at PGCC in order to enter into the professional golf certification process. (See VRC counseling note, dated January 7, 2010). That same day, the VRC sent a letter to the Veteran, wherein he informed him that his vocational rehabilitation program had been interrupted because of the result of the telephone conversation. The VRC informed the Veteran that they would have to discuss a plan for redevelopment to meet Chapter 31 guidelines. The Veteran was instructed to contact the RVC to discuss his plans for training. (See VRC's letter to the Veteran, dated January 7, 2010). On January 11, 2010, a certifying official at PGGC faxed the Veteran's VRC, VA Form 22-1999b, Notice of Change in Student Status, reflecting that the Veteran had been enrolled at PGGC from May 2, to December 18, 2009. The PGGC certifying official signed the form and indicated that the Veteran had requested to withdraw before the beginning of the next term, and that he planned to return after he took off a semester or two. (See facsimile coversheet from PGCC to the VRC and VA Form 22-1999b, Notice of Change in Student Status, dated and signed by a certifying official at PGGC, each dated January 11, 2010). A VA counseling note, dated in February 2010, reflects that the VRC knew of the Veteran's enrollment in on-line classes from the Learning Center at the Professional Golfers Association of America (PGA). The VRC noted that the PGA Learning Center was a non-VA approved training facility; thus, the Veteran would not be approved for VA Chapter 31 payments. The VRC indicated that the Veteran had chosen to complete the certification courses on his own. A March 2010 counseling note shows that the VRC had considered the Veteran's [professional] certification track a viable one. The VRC also noted that the Veteran would not be eligible for subsistence allowance during his certification process. (See March 2010 VRC's counseling note). On April 20, 2010, the VRC indicated that he would have to adjust the Veteran's Chapter 31 award to December 21, 2009. He maintained that PGCC had not sent him a notice of change of status form nor had it placed the Veteran's drop date into VA ONCE. The Veteran's VRC reported that the Veteran knew of his ineligibility for subsistence allowance yet he continued to receive them. The VRC stated that he had talked with the Veteran often during the previous few months. (See April 20, 2010 VRC's counseling note). In April 2010, VA informed the Veteran that his vocational rehabilitation subsistence allowance had been stopped, effective December 31, 2009, the date he had withdrawn from PGCC. VA notified the Veteran that an overpayment of $2,751.12 had been created and that he could request a waiver of the debt. The Veteran was notified that an automatic withholding of his current or future benefits to repay the debt would begin unless he applied for a waiver within 20 days. On May 6, 2010, which was within 20 days of April 26, 2010, VA received the Veteran's notice of disagreement, wherein he requested a waiver of overpayment of the debt of $2,751.12. The first question to be addressed is the validity of the debt. The Board finds that error by VA was the cause of the overpayment of additional vocational rehabilitation training subsistence allowance benefits in the amount of $2,751.12. Here, the VRC knew of the Veteran's intent to withdraw from PGCC to pursue the professional certification process and informed him via a letter, dated January 7, 2010 that his vocational rehabilitation program had been interrupted. As of January 11, 2010, the VRC had official knowledge of the Veteran's intent to withdraw from his formal coursework at PGCC prior to the beginning of the new school term in January 2010, as evidenced by the facsimile from PGGC to the VRC and VA Form 22-1999b, Notice of Change in Student Status, dated and signed by a certifying official at PGGC on January 11, 2010. Notwithstanding his knowledge of the Veteran's official withdrawal from PGCC as of January 11, 2010, or his knowledge that the Veteran had continued to take on-line classes to further his professional certification process in January and February 2010, the VRC never adjusted the Veteran's Chapter 31 award to a stop date of December 31, 2009 until April 2010. As such, it is clear that the payment of additional subsistence allowance flows from the same mistake by VA and was also due to sole VA administrative error. Accordingly, the Board also finds that error by VA was the cause of the overpayment of additional vocational rehabilitation training subsistence allowance benefits in the amount of $2,751.12 in this case. A finding that the erroneous award was based solely on VA error mandates that the effective date of reduction of the erroneous VA award be the date of last payment. Hence, since the overpayment was made by reason of an erroneous award base solely on administrative error, the reduction of that award cannot be made retroactive to form an overpayment debt owed to VA from the recipient of the erroneous award. Accordingly, there is no basis in law for the RO's conclusion that this overpayment was validly created. 38 U.S.C.A. § 5112(b)(10); 38 C.F.R. § 3.500(b)(2). In conclusion, the Board finds that the erroneous awards of additional vocational rehabilitation training subsistence benefits were solely the result of VA administrative error, and in effect, void ab initio. The overpayment in the amount of $ 2,751.12 was improperly created and therefore may not be assessed against the Veteran. Thus, the issue of the Veteran's entitlement to waiver of recovery of this overpayment is moot. ORDER Because the $ 2,751.12 indebtedness of vocational rehabilitation training subsistence allowance benefits was improperly created, the benefit sought on appeal is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs