Citation Nr: 1338093 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 12-26 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether a request for waiver of recovery of an overpayment of improved pension benefits, originally in the calculated amount of $19,212.00, was timely filed. 2. Whether the all or part of the overpayment of improved pension benefits, originally in the calculated amount of $19,212.00, was properly created. ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from November 1946 to April 1948. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) decision of the Milwaukee Committee on Waivers and Compromises (COWC) dated in March 2012, which denied waiver of recovery of the overpayment on the basis that the request had not been timely filed. In connection with the RO's recalculation of the Veteran's overpayment in October 2011, an additional overpayment was created, in the amount of $4,856.00. Waiver of recovery of that overpayment was granted by the COWC in January 2012, and that additional overpayment is not part of the current appeal. 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). For reasons expressed below, the issue involving the proper creation of the overpayment is being remanded to the RO. FINDINGS OF FACT 1. By a letter dated July 22, 2010, the VA Debt Management Center informed the Veteran of his overpayment of improved pension benefits in the amount of $19,212.00, and notified him of his right to request a waiver of recovery of the debt within 180 days. 2. The Veteran's request for waiver of recovery of the debt was received by the VA in October 2011, and there is no evidence of a delay in receipt of the notice which prevented the Veteran from filing a timely waiver request. CONCLUSION OF LAW The Veteran's request for waiver of recovery of an overpayment of improved pension benefits, originally in the amount of $19,212.00, was not timely filed. 38 U.S.C.A. § 5302(a) (West 2002); 38 C.F.R. § 1.963(b)(2) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 does not affect matters on appeal when the issue is limited to statutory interpretation, nor does it apply to waiver claims. Dela Cruz v. Principi, 15 Vet.App. 143 (2001); Barger v. Principi, 16 Vet.App. 132 (2002). The Veteran has been provided all necessary information, and, in any event, the essential facts are not in dispute; the case rests on the interpretation and application of the relevant law. A review of the file indicates that there is no reasonable possibility that any further assistance would aid the Veteran in substantiating his claim. Thus, there has been adequate notification and development under the relevant law. The Veteran originally began receiving pension benefits effective in December 1998. In July 2010, his pension benefits were retroactively terminated effective in February 2006, due to the receipt of additional income beginning in 2006, which had not previously been reported to VA. In a letter dated in March 2010, the Veteran was informed that VA proposed to terminate his pension benefits effective February 1, 2006, due to the receipt of additional income, including his wife's employment income. The Veteran disputed the debt in April 2010, stating, in part, that his wife had retired in April 2006. The RO, however, found that this statement did not change the decision, and in July 2010, terminated the Veteran's benefits effective February 1, 2006, due to excess income. He was notified that because of the change, he had been paid too much, and that he would be notified shortly of how much he had been overpaid, and how he could repay the debt. In a letter dated in July 2010, the Veteran was notified by the VA Debt Management Center (DMC) that the award action had resulted in a debt in the amount of $19,212.00, which must be repaid. This letter informed the Veteran of his right to request a waiver of recovery of the debt, and that he had 180 days to file such a request. Unfortunately, the Veteran did not file a waiver request within 180 days, or any statement that could be liberally construed as a waiver request. His only communication during that time concerned his dispute with how the income had been counted. The law requires that a request for waiver be filed within 180 days following the date of notice of the debt. The 180 day period may be extended if the individual requesting waiver demonstrated to the COWC that, as a result of an error by either the 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). 38 U.S.C.A. § 5302(a); 38 C.F.R. § 1.963(b)(2). In this case, the Veteran has not disputed having received this letter, nor raised any allegations of significant delay in his receipt of the letter, due to circumstances beyond his control. It has been argued on his behalf that he did not understand the procedures involved. He stated that he was taking care of his wife at the time, who was terminally ill, and he did not have time to consider the matter. He also points out that it took VA several years to determine that he was overpaid, and does not feel that it is fair that he should have to respond in such a short time period. However, VA must apply the law as it exists, which, in this case, does not permit an allowance based on the factors raised by the Veteran. In this regard, federal laws authorizing monetary benefits are enacted by Congress, and, unless an individual meets all of the requirements of a particular law, he or she is not entitled to the benefit; indeed the benefit cannot be awarded, regardless of the circumstances or claims of fairness. See, e.g., Office of Personnel Management v. Richmond, 496 U.S. 414, 426, 110 L. Ed. 2d 387, 110 S. Ct. 2465 (1990); Davenport v. Principi, 16 Vet. App. 522 (2002); Harvey v. Brown, 6 Vet. App. 416 (1994). Here, it is undisputed that the Veteran received notice of his debt, and right to request waiver, in a timely manner, and that he did not file a waiver request until after the 180 days had elapsed. Moreover, because the waiver request was not timely filed, matters such as the relative fault of the VA and the Veteran, or financial hardship, may not be considered. As the disposition of this claim is based on the law and not a dispute as to the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The Veteran's request for waiver of recovery of an overpayment of improved pension benefits, originally in the amount of $19,212.00, was not timely filed; and the appeal as to that issue is denied. REMAND As discussed above, in July 2010, the Veteran's VA pension benefits were retroactively terminated, effective February 1, 2006, because it was discovered that the Veteran and his wife had additional income during that year, which had not been previously reported; this resulted in an overpayment, originally in the amount of $19,212.00. When informed of an overpayment, a Veteran has the right to request waiver; "informally dispute" the amount or existence of the debt; and/or appeal the "decision underlying the debt." 38 C.F.R. § 1.911(c) (2013). These rights may be exercised separately or simultaneously. Id. On November 2010, the Veteran submitted a statement denying having received some of the income that went into the creation of the debt. This was construed by the RO as an informal dispute, and, after additional development, the RO recalculated the debt, ultimately adding a new overpayment (later waived), in October 2011. However, by this time, the 180 days for filing a waiver request for the original overpayment had elapsed. Whether a communication constitutes an "informal dispute" or an "appeal" may be subject to interpretation, as the regulations provide no clear demarcation. An "informal dispute" means that a debtor writes to VA and questions whether he or she owes the debt or whether the debt is accurate. 38 C.F.R. § 1.911(c)(1). An appeal is initiated by a notice of disagreement, consisting of a written communication from a claimant expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result. 38 C.F.R. § 20.201 (2013). Special wording is not required. Id. Moreover, the Board has an obligation to liberally construe the appeal filings of a claimant to discern all issues raised in the record. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Here, the Veteran's November 2010 statement did not define its purpose. However, the Board notes that it was sent to the Milwaukee RO, which provided notice of the "decision underlying the debt," rather than the St. Paul DMC, which provided notice of the amount of the overpayment. The Veteran also attached a copy of the July 2010 notice of the "decision underlying the debt," including the 2-page notice of appellate rights, explaining how to appeal a decision, to his statement received in November 2010. This letter from VA did not include information concerning the right to "dispute" the debt or request waiver, which instead was included in the letter from DMC also sent in July 2010. In this context, it appears more likely that the Veteran was intending to appeal the "decision underlying the debt," rather than "informally dispute" the debt. Particularly when construed liberally, the Board finds that the Veteran's statement received in November 2010, along with the enclosures, constitutes a timely notice of disagreement with the July 2010 "decision underlying the debt," which informed him of the retroactive adjustment to his pension award. Where a notice of disagreement has been filed with regard to an issue, and no statement of the case has been issued, the appropriate Board action is to remand the issue to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Prior to the issuance of a statement of the case, there are some matters which must be clarified. When reviewing the amount of the overpayment, the RO found that a reduction in the Veteran's debt was warranted for the period from February 1, 2009, to January 1, 2010, due to medical expenses. However, the calculations set forth by the RO in its pension award computation dated in October 2011 do not reveal the precise amount by which the Veteran's overpayment was adjusted, nor is this clarified elsewhere. In this regard, it appears to have been reduced by $4,202 ($382 per month), according to the calculations noted in the record, but the amount of the remaining principal debt, after that was taken into consideration, has not been explicitly listed. Additionally, the basis for the reduction of the Veteran's debt by apparently only $4,202, for the period from February 2009 to January 2010, due to medical expenses in the amount of $13,378, is not adequately explained. In this regard, the Veteran appealed the decision within a year, and the overpayment was not created as a result of his failure to provide EVRs. See 38 C.F.R. § 3.661(b)(2)(ii) (2013) ("Adjustment of overpayment. If evidence of entitlement to improved pension or DIC for any period for which payment of improved pension or DIC was discontinued for failure to file an Eligibility Verification Report is received at any time, payment of improved pension or DIC shall be awarded for the period of entitlement for which benefits were discontinued for failure to file an Eligibility Verification Report."). Not only was the overpayment not created due to failure to provide EVRs, but applying the entire $13,378 would only serve to reduce the overpayment. It also appears that the RO excluded the Veteran's wife's Medicare Part D premiums from the allowable medical expenses, for reasons which have not been explained. In addition, for the calendar year 2008, it appears that the Veteran was charged with monthly income in the amount of $847, identified as "SSR"; although "SSV" appears to refer to the Veteran, and "SSS" to the Veteran's spouse, the Board is unable to discern the source of the income identified as "SSR" from the information provided by SSA, or elsewhere. In view of these factors, the RO must explain the overpayment, clearly identifying all sources and amounts of income, and reflecting consideration of the concerns raised by the Board, before issuing a statement of the case. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Prior to issuing a statement of the case (SOC) please review the Veteran's improved pension account for the period covered by the overpayment at issue, i.e., February 1, 2006, to June 1, 2010. In any decision rendered, by SOC or otherwise, identify the principal amount of this specific overpayment remaining after the October 2011 calculations (i.e., the actual amount of the overpayment on appeal, without consideration of the new overpayment (later waived), amount which has been recouped, or costs and interest). Provide an explanation for the calculation of the overpayment, describing the basis of the calculations in terms which can be understood by laymen. Abbreviations not commonly known, such as "SSR" must be defined. In particular, the following matters must be reviewed and explained: * The failure to include Medicare Part D premiums as a deductible medical expense; * The source of the income identified as "SSR" for 2008 noted in the October 2011 award; * The basis for the reduction of the Veteran's debt by apparently only $382 per month for the period from February 2009 to January 2010, due to medical expenses in the amount of $13,378, in light of the facts that the overpayment was not created as a result of the Veteran's failure to provide EVRs, and that application of the entire amount would only serve to reduce the overpayment. See 38 C.F.R. § 3.661(b)(2)(ii). 2. Thereafter, if the decision remains adverse to the Veteran, furnish a statement of the case with regard to the issue of whether the overpayment, in an amount clarified by the RO, was properly created. The statement of the case must include an explanation of the matters addressed in the preceding paragraph. Inform the Veteran of the need and time limits for the submission of a substantive appeal. This issue should not be certified or returned to the Board unless a timely substantive appeal is received. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. 2012). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs