Citation Nr: 1409489	
Decision Date: 03/06/14    Archive Date: 03/18/14

DOCKET NO.  10-36 185A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to a waiver of recovery of an overpayment of education benefits in the amount of $3,000.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. Kirscher Strauss, Counsel

INTRODUCTION

The Veteran served on active duty from July 1976 to June 1982 and from November 1989 to October 2003.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2010 decision by the Committee on Waivers and Compromises at the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

In September 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record.


FINDINGS OF FACT

1.  In August 2009, the Veteran provided VA information about his requested education program under Post-9/11 GI Bill education benefits; however, he did not provide the full name and address of the school as requested.

2.  The RO received information from Ventura Adult and Continuing Education in October 2009 regarding the Veteran's non-college degree (NCD) program.

3.  The RO notified the Veteran in November 2009 and February 2010 letters that VA could not approve his chosen education program at Ventura Adult and Continuing Education; the letters provided information for finding an education program approved by VA.

4.  VA Web Enhanced Approval Management System (WEAMS) reports dated in January and February 2010 indicate that Ventura Adult and Continuing Education was approved by VA in July 1997 and his NCD program was approved by VA in July 2003.

5.  VA personnel notified the Veteran by telephone in January 2010 that his education program was approved.

6.  The Board finds credible the Veteran's statements and testimony that he was told by VA personnel outside of the November 2009 and February 2010 letters that his education program and educational facility were approved.

7.  Although the overpayment resulted in unjust enrichment of the Veteran, he and VA were at relatively equal fault in creating the overpayment, and denying his request for a waiver would result in undue hardship.


CONCLUSION OF LAW

The criteria for waiver of recovery of the overpayment of VA education benefits in the amount of $3,000 have been met.  38 U.S.C.A. § 5302 (West 2002); 38 C.F.R. § 1.965(b) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran contends that he should not have to pay the $3,000 debt at issue.  His request for a waiver of recovery of the debt was timely.  38 U.S.C.A. § 5302; 38 C.F.R. § 1.963(b).  He acknowledges receiving letters from VA in November 2009 and February 2010 that VA could not pay for benefits at Ventura Adult and Continuing Education; however, he asserts that at the time he received the $3,000 advance from VA to pay for classes under the Post-9/11 GI Bill, he was told by VA personnel that his program was qualified for education benefits.

The Board has considered the evidence of record and finds no indication of fraud, misrepresentation, or bad faith on the part of the Veteran.  See 38 U.S.C.A. § 5302(c) (West 2002); 38 C.F.R. §§ 1.962,1.963 (2013).  The Board also finds that recovery of the overpayment would be against equity and good conscience because the relative fault in the creation of the debt appears to be balanced between VA and the Veteran and repayment of the debt would result in undue hardship.  See 38 U.S.C.A. § 5302; 38 C.F.R. § 1.965(a) (2013); Ridings v. Brown, 6 Vet. App. 544, 546 (1994) (describing non-inclusive elements for consideration in determining whether the standard of "equity and good conscience" will be applied).

Here, the RO provided written notice to the Veteran in two letters that payment for his education program was not approved; however, January and February 2010 WEAMS reports suggest that VA personnel attempted to reconfirm whether the program at Ventura Adult and Continuing Education was approved; both the program and the school appeared to be approved by VA according to the reports.  A January 2010 claims file note indicates that VA personnel called the Veteran and notified him that his program, which he had already been attending, was approved per WEAMS.  A financial status report indicates that the Veteran's expenses slightly exceed his income.  In summary, it appears that the Veteran received some conflicting information about whether he was eligible to receive payment for his educational program at Ventura Adult and Continuing Education, and waiver of recovery of the debt is warranted.


ORDER

Waiver of recovery of an overpayment of education benefits in the amount of $3,000 is granted.



____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs