Citation Nr: 1330966 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 09-50 108 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Whether an overpayment of VA nonservice-connected pension benefits paid to the Veteran from March 15, 2009 through March 31, 2009, calculated in the amount of $642.13, constitutes a valid debt. 2. Entitlement to waiver of the recovery of an overpayment of nonservice-connected pension benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from July 1970 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 decision by the Committee on Waivers and Compromises (Committee). The Board notes that, in the course of this appeal, the Veteran requested a hearing with the Board. Such a hearing was scheduled for May 2011; however, the Veteran failed to appear on the scheduled date. The Veteran and his representative have not requested that the hearing be rescheduled, or provided an explanation regarding his absence. In a September 2013 letter, the Veteran's representative stated that attempts were made to contact the Veteran on four separate occasions at two separate addresses regarding his hearing. These attempts were unsuccessful. The hearing request is considered withdrawn at this time. See 38 C.F.R. § 20.704. The Board has considered documentation included in Virtual VA. Virtual VA shows that in December 2011, an appeal of the issue of reinstatement of nonservice-connected pension benefits was perfected by the Veteran. Subsequently, in April 2012, the claim was granted by the RO. As such, it is no longer in appellate status and will not be addressed by the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The Virtual VA record shows that, in June 2010, the issue of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, was raised, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and refers the matter to the AOJ for appropriate action. FINDINGS OF FACT 1. In a December 1997 rating decision, the Veteran was awarded nonservice-connected pension benefits, but had not been awarded service connection for any disability. 2. On January 13, 2009, the Veteran was convicted of a felony and sentenced to two years and six months of confinement in a correctional facility. 3. The Veteran's imprisonment began on January 29, 2009. 4. On March 19, 2009, the RO was notified of the Veteran's conviction. 5. On March 19, 2009, the RO notified the Veteran that his pension benefits would be terminated effective on March 15, 2009, which was calculated to be the 61st day of incarceration. 5. In an October 2009 decision, the Committee determined that an overpayment had been created in the amount of $642.13 for pension benefits paid from March 15, 2009 through March 31, 2009. CONCLUSIONS OF LAW 1. VA did not overpay nonservice-connected pension benefits to the Veteran in the amount of $642.13 between March 15, 2009 and March 31, 2009. 38 U.S.C.A. § 5313 (West 2002 & Supp. 2012); 38 C.F.R. § 3.666 (2013). 2. There remains no question of law or fact for Board to resolve regarding the denial of a waiver of recovery an overpayment in the amount of $642.13. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 20.101 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VCAA imposes obligations on VA in terms of its duties to notify and assist claimants. VCAA is not applicable to claims for waiver of recovery of overpayment. Barger v. Principi, 16 Vet. App. 132, 138 (2002); see also Lueras v. Principi, 18 Vet. App. 435 (2004) (the VCAA does not apply to a waiver). Thus, any discussion as to VCAA compliance is not required. In any event, because the Board is granting the claim, there is no need to discuss in detail whether there has been compliance with the notice and duty to assist provisions of VCAA because even if, for the sake of argument, there has not been, this is inconsequential and, therefore, at most harmless error. See 38 C.F.R. § 20.1102. Analysis The issue of the validity of a debt is a threshold determination that must be made prior to a decision on a request for waiver of the indebtedness. See Schaper v. Derwinski, 1 Vet. App. 430 (1991). In order for the Board to determine that the overpayment was not properly created, such that the debt was not valid, it must be established that the Veteran was legally entitled to the benefits in question or, if the Veteran was not legally entitled, then it must be shown that VA was solely responsible for the Veteran being erroneously paid benefits. Administrative errors include all administrative decisions of entitlement, whether based upon mistake of fact, misunderstanding of controlling regulations or instructions, or misapplication of law. VAOPGPREC 2-90 (July 17, 1989), 55 Fed. Reg. 27757 (1990). Sole administrative error connotes that the Veteran neither had knowledge of nor should have been aware of the erroneous award. Further, neither the Veteran's actions nor his or her failure to act must have contributed to payment pursuant to the erroneous award. 38 U.S.C.A. § 5112(b) (9), (10) (West 2002 & Supp. 2012); 38 C.F.R. § 3.500(b)(2) (2013); Jordan v. Brown, 10 Vet. App. 171 (1997) (sole administrative error is not present if the payee knew, or should have known, that the payments were erroneous). Thus, a finding of sole administrative error requires not only error on the part of VA, but that the beneficiary was unaware that the payments were erroneous. The Veteran contends that he should not be held responsible for an overpayment due to a reduction in his VA pension benefits due to incarceration and that any such debt should be waived. In a December 1997 rating decision, the Veteran was awarded nonservice-connected pension benefits. He has not been awarded service connection for any disability. On January 13, 2009, the Veteran was convicted of a felony and sentenced to two years and six months of confinement in a correctional facility. The prisoner information sheets generated in April 2009 and August 2009 revealed that the Veteran's confinement began on January 29, 2009. A November 2009 printout from the Offender Information System, contained in Virtual VA (received on January 19, 2010), shows the Department of Corrections (DOC) Intake Date as January 29, 2009. The Board finds these documents demonstrate that imprisonment began on January 29, 2009. On March 19, 2009, the RO was notified of the Veteran's conviction. On March 19, 2009, the RO notified the Veteran that his pension benefits would be terminated effective on March 15, 2009, which was calculated to be the 61st day of imprisonment following conviction. In an October 2009 decision, the Committee determined that an overpayment had been created in the amount of $642.13 for pension benefits paid from March 15, 2009 through March 31, 2009. The law provides that if any individual to or for whom pension is being paid under a public or private law administered by the Department of Veterans Affairs 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. 38 C.F.R. § 3.666. The payee will be informed of his or her rights and the rights of dependents to payments while he or she is imprisoned as well as the conditions under which payments to him or to her may be resumed on his or her release from imprisonment. Payments of pension authorized under this section will continue until notice is received by the Department of Veterans Affairs that the imprisonment has terminated. Id. The Veteran does not contest that he was incarcerated for a felony conviction in January 2009. There can be no dispute that he was not legally entitled to benefits beginning the 61st day of his incarceration. See 38 C.F.R. § 3.666. However, for a valid debt to be created, the overpayment must not have been solely due to administrative error. Here, the apparent overpayment was created for a two week period, beginning on March 15, 2009, and ending on March 31, 2009. March 15, 2009 is the date the RO calculated as the 61st day of incarceration. The regulation states that "pension payments will be discontinued effective on the 61st day of imprisonment following conviction." 38 C.F.R. § 3.666 (emphasis added). Here, the records show that while the Veteran's conviction occurred on January 13, 2009, his imprisonment did not begin until January 29, 2009. It is not the date of conviction from which 61 days must be calculated, it is the date of imprisonment following conviction. Conviction and imprisonment are not shown to have occurred on the same date in this case. The Board's calculation of 61 days from January 29, 2009 yields an end date of March 31, 2009. As such, the Veteran was entitled to receive his nonservice-connected pension benefits until March 31, 2009, which he did. VA's payment of these benefits from March 15, 2009 to March 31, 2009 was correct; this was not an overpayment. The Board's calculation suggests that benefits should have ceased on March 31, 2009; that is, the Veteran was entitled to payment through March 30, 2009 and no later. While it is unclear from the file whether the Veteran was actually paid for the day of March 31, 2009, any reasonable doubt in this regard is resolved in favor of the Veteran. In view of the finding that there was no overpayment of benefits, the Board finds that the RO's decision to adjust the Veteran's disability compensation effective March 15, 2009, was improper and that the debt is not a valid debt to VA. Therefore, restoration of the Veteran's VA pension benefits is warranted, and any recouped amount should be paid to him. As there is no longer any overpayment of benefits, the question of a waiver of recovery of the overpayment is rendered moot, and the appeal will be dismissed. ORDER The appeal challenging the validity of the overpayment of $6242.13 is granted. The appeal of the claim for a waiver of the overpayment on nonservice-connected pension benefits is dismissed. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs