Citation Nr: 1628054 Decision Date: 07/14/16 Archive Date: 07/28/16 DOCKET NO. 12-12 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a waiver of overpayment in the amount of $15,563.00. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1973. This matter comes to the Board of Veterans Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Pension Management Center at the St. Paul, Minnesota Regional Office (RO). The RO in Winston-Salem, North Carolina otherwise has jurisdiction of the claims folder. In the Veteran's April 2012 VA Form 9, substantive appeal to the Board, he requested a hearing before the Board. In a March 2016 communication, the Veteran related that he wished to withdraw his hearing request. As such, his hearing request is deemed withdrawn. FINDINGS OF FACT 1. In a September 25, 2010, letter, the Veteran was notified of an overpayment of benefits in the amount of $15,563.00, and an enclosed form advised him that he had a period of 180 days from the date of such letter to request a waiver of the debt. 2. The Veteran's request for a waiver of recovery of the overpayment was received by VA on January 5, 2012. There is no showing that notice letters concerning this overpayment were returned as undeliverable. CONCLUSION OF LAW The Veteran's request for a waiver of recovery of an overpayment of benefits in the amount of $15,563.00 was not timely; accordingly, his appeal is denied as a matter of law. 38 U.S.C.A. § 5302(a) (West 2014); 38 C.F.R. § 1.963 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA has a duty to provide specific notification to the Veteran and assist him with the development of evidence pursuant to the Veterans Claims Assistance Act (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). However, the United States Court of Appeals for Veterans Claims (Court) has held that the notice and duty to assist provisions of the VCAA do not apply to claims for waiver of recovery of overpayments. See Barger v. Principi, 16 Vet. App. 132 (2002). In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of the claim. II. Legal Criteria, Factual Background, and Analysis The January 2012 RO decision denied waiver of overpayment which was created due to the Veteran's fugitive status based on the fact that the Veteran did not file an application for waiver within 180 days from the date of notification of an indebtedness. See 38 U.S.C.A. § 5302 (a) (West 2014), 38 C.F.R. § 1.963 (b) (2015). The Veteran hereby appeals that decision. He has asserted that he was incarcerated when the notice was sent by VA, that he has no income and is homeless, has numerous health issues, and is unable to pay the overpayment. Under the applicable regulations, a request for waiver of a debt, other than for loan guaranty, shall only be considered if made within 180 days following the date of a notice of the indebtedness to the debtor. The 180-day period may be extended if the individual requesting waiver demonstrated to the Chairperson of the Committee 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, including forwarding. 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. See 38 C.F.R. § 1.963(b) (2015); see also 38 U.S.C.A. § 5302(a) (West 2014). In a June 2010 letter, the Veteran was advised that law enforcement authorities had advised VA that the Veteran was a fugitive felon, and that a warrant was issued for his arrest on May 7, 2009. The Veteran was further advised that the laws and regulations prohibited VA benefits from being paid to beneficiaries while they were fugitive felons. Therefore, it was proposed that his VA benefits be stopped from May 7, 2009. The letter advised the Veteran that the adjustment would result in an overpayment of benefits that had been paid to him and that if the proposed decision was implemented, he would be notified of the exact amount of the overpayment, as well as given information about repayment. In another letter dated September 13, 2010, VA advised the Veteran that the action outlined in the June 2010 has been implemented (his VA benefits have been stopped beginning May 7, 2009), as the Veteran has not provided any information regarding the proposed action. The letter further advised the Veteran that the adjustment had resulted in an overpayment of benefits which had been paid to him, and that he would be notified shortly of the exact amount of the overpayment and given information about repayment. He was also provided instructions on how to submit new evidence for the RO to reconsider its decision and how to appeal the decision to the Board, if he disagreed with the RO's decision. On September 25, 2010, the VA Debt Management Center informed the Veteran by letter that he had been paid $15,563.00 more than he was entitled to receive. The letter informed the Veteran that he had the right to dispute the debt and the right to request a waiver. The letter stated in bold print, "Information regarding these options is on the enclosed document entitled, Notice of Rights and Obligations. Read it carefully." As an incidental matter, the Board notes that although a copy of the enclosed document was not included in the Veteran's virtual claims file, the form letter noted that enclosures were included with the letter. Therefore, the Board presumes that the Notice of Rights and Obligations document was sent to the Veteran at his address of record in September 2010, along with the notice of indebtedness. Significantly, the Veteran has not asserted that the Notice of Rights and Obligations document was not enclosed with the September 2010 letter, and no clear evidence has been presented to rebut the presumption of regularity. See generally Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to official duties of the AOJ). Moreover, there is no showing that any of these pertinent letters were returned to VA as undeliverable. In August 2011, confirmation was obtained from the North Carolina Department of Corrections that the Veteran had been convicted on February 18, 2011, for a felony, and released on August 25, 2011. The Veteran's request for a waiver of overpayment was received by VA on January 5, 2012. In January 2012, the Veteran's request for a waiver was denied due to his failure to submit an application for a waiver within 180 days of the September 2010 notification letter. See January 31, 2012 VA Form 4-1837, Decision on Waiver of Indebtedness. In the Veteran's March 2012 notice of disagreement (NOD), he related "I have no income and have not had any income for the past 2 years. I live in the streets. I am homeless. I check in at the homeless [s]helter whenever I can get a bed." In his April 2012 VA-9 form, the formal appeal to the Board, the Veteran asserted that he did not receive notification of the overpayment, as he was in jail when the notification came. After reviewing the foregoing factual background as well as the evidence of record, the Board finds that the Veteran's request for a waiver of overpayment was not timely. In particular, the record shows that at the time of the June 2010, September 13, 2010, and September 25, 2010, letters, the Veteran had an address of record, and there is nothing in the record to suggest that the letters were returned as undeliverable or that there was a delay in the Veteran's receipt of those letters. Significantly, the Veteran was incarcerated from February 2011 to August 2011, well after the notices went out to him. Therefore, it cannot be said that he was not properly notified both of the creation of the overpayment and of his right to request a waiver of overpayment. The Veteran filed a request for a waiver of overpayment well after 180 days after notice of the overpayment was issued - he filed it about a year and a half after VA notified him of the overpayment. In conclusion, the facts of the case clearly show that a claim for waiver was not received by VA within the 180-day time limit mandated by law. The Court has held that in cases such as this, where the law is dispositive, the claim should be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). Thus, it is determined that the Veteran's request for a waiver of overpayment was not timely, and as a matter of law, his claim must be denied. The Board is sympathetic with the Veteran's current circumstances. Unfortunately, the law does not allow for a more favorable outcome in this case, as the law here is dispositive and does not permit the Board to consider the Veteran's socioeconomic circumstances. ORDER Entitlement to a waiver of overpayment in the amount of $15,563.00 is denied. ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs