Citation Nr: 1605966 Decision Date: 02/17/16 Archive Date: 03/01/16 DOCKET NO. 14-24 048A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE 1. Whether the Veteran filed a timely waiver of indebtedness for an overpayment of Department of Veterans Affairs (VA) educational benefits in the calculated amount of $5500.53. 2. Entitlement to a waiver of the overpayment of Department of Veterans Affairs (VA) benefits in the calculated amount of $5500.53. ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1998 to December 2004. This matter comes before the Board of Veterans' Appeals (Board) from a December 2012 decision of the St. Louis, Missouri Regional Office (RO) of the Department of Veterans' Affairs (VA), which indicated that the Veteran had been overpaid education benefits in the total amount of $5500.53. FINDINGS OF FACT 1. The RO sent January 2013 notices of indebtedness to an incorrect address and there is no indication that the Veteran received them. 2. As the Veteran is not shown to have received the notices of indebtedness prior to his actual waiver request received in February 2014, his request for waiver must be considered as having been filed within 180 days. 3. Although the Veteran was at fault for creation of the overpayment of educational benefits, collection of the instant debt would result in undue hardship. CONCLUSION OF LAW The criteria for waiver of recovery of the overpayment of education benefits in the amount of $5500.53 have been met. 38 U.S.C.A. § 5302 (West 2014); 38 C.F.R. §§ 1. 962, 1.963, 1.965 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION A request for waiver of recovery of indebtedness shall only be considered if made within 180 days following the date of a notice of indebtedness issued on or after April 1, 1983, by VA to the debtor. The 180 day period may be extended if the individual requesting waiver demonstrates that as a result of an error by either 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. If the requester does substantiate that there was such a delay in the receipt of the notice of indebtedness, the 180 day period be computed from the date of the requester's actual receipt of the notice of indebtedness. 38 C.F.R. § 1.963(b). In an October 2012 report of general information, an RO veteran's service representative (VSR) contacted the Veteran via phone and clarified that his current address in Chicago, Illinois was [redacted]. This address is also the one currently on file with the RO for the Veteran. In the subsequent December 2012 decision, the RO determined that the Veteran had received an overpayment of educational benefits for the period from October 10, 2012 to December 15, 2012. These funds were intended to be applied toward courses taken at Westwood College-Ohare and for the Veteran's housing. The RO noted that the Veteran had been provided the educational assistance but had not taken any courses at Westwood College during this time, resulting in an overpayment of tuition and fees of $3647.53 and an overpayment of his monthly housing allowance of $1853.00. Subsequently, in a pair of January 2013 notices of indebtedness, the VA Debt Management Center (DMC) in St. Paul Minnesota, noted that the Veteran had been overpaid the $3647.53 in tuition and fees and the $1853.00 in housing allowance respectively (i.e. a total overpayment of $5500.53). These notices described the Veteran's rights to dispute the underlying debts and to request a waiver of them. Unfortunately, both the initial December 2012 decision and the subsequent January 2013 notices of indebtedness were addressed to [redacted] in Chicago, rather than [redacted] [redacted]. Also, the Veteran has affirmatively reported that he did not become aware that he was indebted to VA until the beginning of October 2013, thus indicating that he did not receive the December 2012 decision or the January 2013 notices of indebtedness. He subsequently requested waiver of his indebtedness, indicating that collection of it would result in financial hardship. In a February 2014 decision, VA determined that the Veteran's request for waiver was not timely filed as it had not been received within 180 days from the notifications of indebtedness. Given that the notices of indebtedness are not shown to have been sent to the Veteran's correct address, as reflected in the October 2012 report of general information; given that the Veteran has essentially reported that he did not receive either notice of indebtedness; and resolving any reasonable doubt in his favor, the Board must conclude that he did not receive the misaddressed notices of indebtedness. Accordingly, since the controlling regulation requires receipt of such notice prior to the commencement of the 180 day time limit for filing a waiver claim, the Board must conclude that the Veteran's waiver request is timely. See 38 C.F.R. § 1.963(b). Considering the merits of the Veteran's waiver claim, there is no indication that he has exhibited fraud, misrepresentation or bad faith. 38 U.S.C.A. § 5302. The evidence does indicate that the Veteran was at fault for creation of the overpayment as he did not inform VA in a timely manner that he had stopped taking courses at Westwood College for the period from October 10, 2012 to December 15, 2012. However, in a December 2013 financial status report, the Veteran reported that his total monthly expenses exceed his total monthly net income. The Board does not have a basis for finding this report not credible. Consequently, the Board finds repayment of the debt constitutes undue hardship and that this outweighs the other factors that must be considered in making a waiver determination, including the Veteran's fault. 38 U.S.C.A. § 5302; 38 C.F.R. § 1.965. Accordingly, resolving all reasonable doubt in the Veteran's favor, recovery of the overpayment is against equity and good conscience and a waiver is warranted. 38 U.S.C.A. § 5302; 38 C.F.R. §§ 1.963(a), 3.102. ORDER The Veteran's claim for waiver of indebtedness of the overpayment of Department of Veterans Affairs (VA) educational benefits in the calculated amount of $5500.53 was timely. Waiver of the overpayment of Department of Veterans Affairs (VA) benefits in the calculated amount of $5500.53 is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs