Citation Nr: 1417484 Decision Date: 04/18/14 Archive Date: 05/02/14 DOCKET NO. 11-21 054A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a waiver of recovery of an overpayment of education benefits under the Reserve Educational Assistance Program (REAP) under 38 U.S.C. Chapter 1607, in the amount of $1,585.20, to include the matter of whether the request for a waiver was timely. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from February 1989 to April 1990 and July 2005 to January 2007 This appeal comes before the Board of Veterans' Appeals (Board) from a December 2010 decision of the Committee on Waivers and Compromises at the RO in Saint Paul, Minnesota, and the Debt Management Center in Fort Snelling, Minnesota, which denied a waiver of recovery of overpayment of REAP benefits under 38 U.S.C. Chapter 1607, in the amount of $1,585.20, on the basis that a timely request for a waiver of overpayment of the education benefits was not submitted. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge at the RO in Detroit, Michigan in March 2012. For reasons discussed below, the issue of entitlement to a waiver of recovery of an overpayment of education benefits under the Reserve Educational Assistance Program (REAP) under 38 U.S.C. Chapter 1607, in the amount of $1,585.20, on the merits, is addressed in the REMAND below and is therein REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran received overpayment of educational benefits in the amount of $1,585.20. 2. The record shows a notice letter was mailed on November 20, 2009 and another letter was sent on February 23, 2010. The Veteran's request for waiver of overpayment was not received until December 2010, which is more than 180 days after the February 2010 letter. 3. The Veteran submitted statements and testimony that after receiving the notices of the debt owed, he called VA and was told, in error, that he did not owe any debt. 4. VA did not transfer the Veteran's waiver claim to the Chapter 33 department in a timely manner until February 2011, which resulted in the Veteran being misinformed about whether he owed a debt during his telephone calls. 5. The Veteran did not receive a timely and clear notice of his debt owed due to circumstances beyond the Veteran's control and relied on this misinformation before deciding to file a waiver of overpayment request in December 2010. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the request for a waiver of recovery of overpayment of education benefits was timely. 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 Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). As the Board is granting the appeal to the extent of timeliness of the request, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis of Timeliness of Waiver Request According to the record the Veteran was receiving education benefits under the Reserve Educational Assistance Program (REAP or Chapter 1607) at a rate of $792.60 per month. In September 2009 VA received the Veteran's application for his education benefits to be switched to Post-9/11 GI Bill (Chapter 33) in lieu of REAP, effective August 1, 2009. As the Veteran had already been paid for REAP benefits for the months of August and September 2009, this created an overpayment of $1,585.20. A notice letter to the Veteran notifying him of the debt created was sent on November 20, 2009. The Veteran submitted a copy of the letter notifying him of his debt in November 2009. The letter has handwritten notes on it. He states that he called VA on the number provided and spoke with a person there who told him that he did not have any debt, and that the notes refer to this exchange. He indicates that he received another notice of the debt in the mail but that he called again, and was again informed that he did not have any debt and did not owe any money to VA. The Statement of the Case and December 2010 letter to the Veteran's congresswoman notes that the Veteran's overpayment issue should have been transferred to Chapter 33 in November 2009 but that VA failed to do this in a timely manner until February 2011. This resulted in the Veteran being incorrectly informed that he owed no debt every time he called and spoke with someone in the Chapter 33 division. After the Veteran received notice that VA was going to garnish his wages, he submitted his request for overpayment in December 2010. The threshold question in any claim concerning a request for a waiver of overpayment is whether the waiver request was timely filed. Under the applicable criteria, a request for waiver of an indebtedness (other than loan guaranty) shall only be considered: (1) if it is made within 2 years following the date of a notice of indebtedness issued by VA to the debtor on or before March 31, 1983, or (2) except as otherwise provided, if it is made within 180 days following the date of a notice of indebtedness issued by the VA to the debtor after April 1, 1983. 38 U.S.C.A. § 5302(a); 38 C.F.R. § 1.963(b). Here, there is no dispute that the notice of indebtedness was issued after April 1, 1983; therefore, the 180 day limit applies. The 180-day period may be extended if the individual requesting waiver demonstrates to the Chairperson of the Committee on Waivers and Compromises 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 C.F.R. § 1.963(b)(2). If the requester does substantiate that there was such a delay in the receipt of the notice of indebtedness, the Chairperson shall direct that the 180-day period be computed from the date of the requester's actual receipt of the notice of indebtedness. Id. Notices of overpayment are issued by VA's Debt Management Center in St. Paul, Minnesota, not by the RO. Typically, they are issued within one month of the appellant's receipt of a letter from the RO notifying him/her that benefits were retroactively terminated or reduced, and that an overpayment in the account had been created. The circumstances of the Veteran's case are not directly addressed by VA regulations governing the extensions for the 180-day time limit for filing a request for waiver of overpayment, as the delay was not the result of a delay in receipt of the letter. However, VA did misinform the Veteran about his debt based on the VA's failure to timely transfer his claim to the Chapter 33 department. The Veteran made a good faith effort to be informed about his debt but was misinformed from VA personnel. As a result the Veteran did not receive a clear notice of his debt from VA in a timely manner due to circumstances that were beyond his control and relied on this misinformation in deciding whether to file a waiver of overpayment request. See 38 C.F.R. § 1.963(b)(2). Therefore, the 180-day period must be computed from the date of actual receipt of the notice of indebtedness. 38 C.F.R. § 1.963(b)(2). It is not clear from the record when the Veteran realized the information he was receiving from VA was wrong. However, he testified that he always timely contacted VA via telephone when he received notices of the debt and was then misinformed that he actually did not owe the debt. He notes that he was told that VA was going to garnish his wages, which prompted him to file the request for waiver of overpayment, but it is not clear when he received this notice. The record shows a notice letter was mailed on November 20, 2009 and another letter was sent on February 23, 2010. The Veteran's request for waiver of overpayment was not received until December 2010, which is more than 180 days after the February 2010 letter. However, according to the Veteran he was still being misinformed about whether he owed a debt whenever he called and spoke to someone at VA. The record also shows that the Veteran's waiver claim was not transferred to the Chapter 33 department until February 2011. As the Veteran was relying on misinformation received by VA in determining whether he had a debt owed to VA and whether he needed to file a waiver request, the Board will find that the December 2010 waiver request is timely; and, to the limited extent of the timeliness of the request for a waiver, the appeal is granted. The merits of the waiver request will be further addressed in the Remand, below. ORDER The appeal regarding the timeliness of the Veteran's request for a waiver of recovery of overpayment of educational benefits in the amount of $1585.20 is granted. REMAND As the Board has found that the Veteran's request for a waiver of overpayment was timely, the merits of the waiver request must be referred to the Committee on Waivers and Compromises for adjudication of the merits of the request. Accordingly, the appeal is REMANDED for the following action: Refer the matter of a waiver of recovery of overpayment of education benefits under the Reserve Educational Assistance Program (REAP) under 38 U.S.C. Chapter 1607, in the amount of $1,585.20, to the Committee on Waivers and Compromises for a decision on the merits of the waiver request, as that request has been determined by the Board to be timely. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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. 2013). ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs