Citation Nr: 1343066 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 11-10 195 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a waiver of the recovery of an overpayment of non service-connected pension benefits in the amount of $22,623.70, to include whether the waiver request was timely received. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from May 31, 1968, to August 1, 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2010 decision of the Committee on Waivers and Compromises ((Committee) at the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. A Travel Board hearing was held in April 2012 before the undersigned Veterans Law Judge (VLJ), sitting in Washington, D.C. A copy of the transcript of that hearing is of record. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. The documents in this file have been reviewed and considered as part of this appeal. FINDINGS OF FACT 1. The Veteran received overpayment of pension benefits in the amount of $22,623.70. 2. In December 2008, following information provided to VA that the Veteran was imprisoned, notice of the proposal to terminate his VA benefits beginning the 61st day of incarceration was mailed to his last address of record and to the Big Muddy River Correctional Center. Additional notice was mailed to the Big Muddy River Correctional Center in January 2009. 3. In June 2009, following information provided to VA that the Veteran was imprisoned, notice of the proposal to terminate his VA benefits beginning the 61st day of incarceration was mailed to the East Moline Correctional Facility. 4. Records show that the Veteran was sent a letter from the Debt Management Center in St. Paul, Minnesota, on June 27, 2009. This letter was mailed to his home address. The letter noted that the amount of debt was $22,623.80 and that the waiver request was denied. A Decision of Waiver of Indebtedness (a denial) in December 2010 was also mailed to the Veteran's last known home address. 5. On December 23, 2010, more than 180 days after notification of the overpayment at issue (in June 2009), the DMC received correspondence from the Veteran wherein he requested waiver of the overpayment. CONCLUSION OF LAW The Veterans request for waiver of recovery of an overpayment of compensation benefits in the calculated amount of $22,623.70 was not timely. 38 U.S.C.A. § 5302 (West 2002 & Supp. 2012); 38 C.F.R. § 1.963(b)(2) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Board notes that in Barger v. Principi, 16 Vet. App. 132 (2002), the United States Court of Appeals for Veterans Claims (CAVC) held that the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107 (West 2002 & Supp. 2012) (VCAA), with its expanded duties, is not applicable to cases involving the waiver of recovery of overpayment claims, pointing out that the statute at issue is found in Chapter 53, Title 38, United States Code, and that the provisions of the VCAA are relevant to a different chapter (i.e. Chapter 51). In addition, the disposition of this case is based on the operation of the law, and the CAVC has also held that the VCAA has no effect on an appeal where the law is dispositive. See Manning v. Principi, 16 Vet. App. 534 (2002). Therefore, the VCAA, and its implementing regulations, are not applicable in this case. Applicable Laws and Analysis A request for waiver of indebtedness other than for loan guaranty shall only be considered if made within 180 days following the date of a notice of indebtedness to the debtor. 38 U.S.C.A. § 5302(a) (West 2002 & Supp. 2012); 38 C.F.R. § 1.963(b)(2) (2012). The 180-day period may be extended if the individual requesting the waiver demonstrates that, as a result of an error by either the Department of Veterans Affairs (VA) or postal authorities, or due to other circumstances beyond the debtor's control, that there was a delay in receipt of the notification of indebtedness beyond the time customarily required for mailing. 38 C.F.R. § 1.963(b)(2) (2012). If the delay in the receipt of the notice of indebtedness is substantiated, the 180-day period is computed from the date of the requester's actual receipt of the notice of indebtedness. Id. In Sabonis v. Brown, 6 Vet. App. 426 (1994), CAVC noted that where the law and not the evidence is dispositive, a claim should be denied or an appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Moreover, in connection with the mailing of correspondence and the presumption of regularity in the administrative process, CAVC has held that VA may rely on the "last known address" shown of record, see Thompson v. Brown, 8 Vet. App. 169, 175 (1995), and that the burden is on the appellant to keep VA apprised of his or her whereabouts, see Hyson v. Brown, 5 Vet. App. 262 (1993). In the instant case, VA received notification in 2008 that the Veteran had been incarcerated at the Big Muddy River Correctional Center from October 1, 2004, to June 4, 2006, when he was released. The document reflects that he was again confined on August 14, 2007. In December 2008, notice of the proposal to terminate his VA benefits beginning the 61st day of incarceration was mailed to his last address of record, as well as to the Big Muddy River Correctional Center. Additional notice of mailed to the Big Muddy River Correctional Center in January 2009. In a February 2009 statement of record, the Veteran acknowledged that he had received an overpayment and wanted to pay it back. He stated that he never meant to defraud VA. In 2009, VA received notification that the Veteran had been incarcerated at the East Moline Correctional Center as of May 25, 2007. Subsequently, notice of the proposal to terminate his VA benefits beginning the 61st day of incarceration was mailed to the East Moline Correctional Facility. Records show that the Veteran was sent a letter from the Debt Management Center in St. Paul, Minnesota, on June 27, 2009. This letter was mailed to his home address. The letter noted that the amount of debt was $22,623.80 and that the waiver request was denied. A Decision of Waiver of Indebtedness (a denial) in December 2010 was also mailed to the Veteran's last known home address. On December 23, 2010, more than 180 days after notification of the overpayment at issue, the DMC received correspondence from the Veteran wherein he requested waiver of the overpayment. The Veteran reiterated at his April 2013 hearing that he never meant to defraud VA and acknowledged that he had received an overpayment. As to his most recent imprisonment, he said that he was released in May 2010. He said that he never received correspondence informing that he had been awarded pension. He acknowledged, however, that he was aware that money from VA was put in his checking account. He told his common law wife to use it to pay bills and did not question where it came from. He again stated that he never saw any correspondence regarding his benefits. The Veteran also testified that he had paid about $10,000 of the amount owed back. He argued that his pension amount should be reduced in that he was not imprisoned in 2006 and that the amount did not take this fact into account. He was to submit evidence regarding his exact incarceration dates (but he did not). The Veteran argued that he never received any correspondence from VA, to include notice that he was to inform VA of his incarceration or that there were restrictions to monies received when he was in prison. He felt that the remainder of his overpayment amount should be waived. In effect, the Veteran has claimed that he did not receive any correspondence regarding his overpayment, to include notice of the Committee decision as he was already in prison at the time of the award and that he never received notice of what he had to do in such a situation. Review of the record reflects that documents regarding the current claim were sent to various addresses of record in an attempt to inform the Veteran of the proposal to terminate his benefits and that the Committee decision was sent to his last known address of record. Thus, while it is clear that the Veteran is correct in stating that he did not receive correspondence from the Debt Management Center as he was imprisoned at this time, it is also clear that he did not inform VA of any change of address as a result of his imprisonment. Therefore, since the Veteran had not notified VA that he had been incarcerated in 2007 (thus failing in his obligation to keep VA informed of his whereabouts), the RO properly sent the notification to his last address of record. Moreover, letters regarding the proposal to terminate his benefits had been sent to various addresses in an attempt to inform him of the proposed termination of benefits due to his imprisonment. See Thompson and Hyson, supra. Significantly, although the Veteran reports that he never received any communication from VA regarding his benefits, there is a February 2009 statement of record wherein he acknowledges that he was overpaid and wanted to set up a repayment plan. As a consequence of the above, the claimant's December 2010 request for a waiver was not timely filed as notice was sent to him at the address of record in June 2009, and there is no other correspondence of record that could be construed to be an earlier request for a waiver. Accordingly, as the Veteran's request for waiver of recovery of an overpayment of pension benefits was not timely filed, the claim is denied. See Sabonis, supra. ORDER The Veteran's request for waiver of recovery of the overpayment of pension benefits in the amount of $22,623.70 was not timely filed and the appeal is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs