Citation Nr: 1751081 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 11-31 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs nonservice-connected pension benefits in the amount of $13,534. [The issues of entitlement to service connection for posttraumatic stress disorder, hypertension, a bilateral foot disability, and erectile dysfunction, and of entitlement to a total disability rating based on individual unemployability due to service-connected disability are also on appeal and will be the subject of a separate decision under a separate docket number.] REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1969 to March 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2011 determination of the Committee on Waivers and Compromises of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the Veteran's request for waiver of recovery of an overpayment of nonservice-connected pension benefits in the amount of $45,108. In May 2013, a videoconference hearing was held before a Veterans Law Judge (VLJ) other than the undersigned (who is no longer with the Board); a transcript of the hearing is associated with the claims file. The Veteran was offered an opportunity for a hearing before a VLJ who would decide his claim; in September 2017 correspondence his representative indicated that by telephonic communication the Veteran had declined another hearing. A November 2013 Board decision granted waiver of recovery of $31,574 of the overpayment, and denied a waiver of recovery of the remaining overpayment amount of $13,534. He appealed the Board's decision, with respect to the denial portion, to the United States Court of Appeals for Veterans Claims (Court). A July 2014 Court Order granted a Joint Motion for Remand (Joint Motion) by the parties (the Veteran and the Office of the General Counsel, who is the legal representative of the Secretary of VA) and vacated the Board's decision for further proceedings consistent with the Joint Motion. In September 2014, the Board remanded the case to the RO for additional development. The issues listed in brackets on page 1 flow from a July 2013 rating decision of the Atlanta, Georgia RO, and are docketed under a separate docket number; they will be the subject of a separate decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran did not inform VA promptly that he began receiving railroad disability payments, and continued to receive VA pension benefits when he knew or should have known that they were awarded based on erroneous income information; VA did not act to stop the Veteran's pension payments upon receipt of his initial report of income information in August 2006 or upon learning through Income Verification Matches in September 2008 or September 2009 of the unearned income. 2. By letter in June 2010, the RO retroactively terminated the Veteran's nonservice-connected pension benefits, for the period of June 1, 2006 to May 1, 2010, due to receipt of excessive income; the pension payments for the period had been based on no countable income. 3. By letter in June 2010, VA's Debt Management Center notified the Veteran of a $45,108 overpayment in his account. 4. A January 2011 decision by the RO's Committee on Waivers and Compromises denied the Veteran's claim for waiver of recovery of the overpayment of $45,108, finding that collection of the overpayment would not be against equity and good conscience. 5. An audit in May 2016 showed that for the period of June 1, 2006 to May 1, 2010, the Veteran was paid VA pension benefits in the amount of $45,108, when he should have been paid $0, resulting in a $45,108 overpayment. 6. A Board decision in November 2013 granted waiver of recovery of an overpayment of nonservice-connected pension benefits in the amount of $31,574, on the basis that VA was more at fault than the Veteran in creating the debt, but denied a waiver of recovery of the remaining overpayment in the amount of $13,534. 7. Recovery of the remaining overpayment of $13,534 is not against equity and good conscience. CONCLUSION OF LAW The Veteran is not entitled to a waiver of recovery of an overpayment of VA nonservice-connected pension benefits in the amount of $13,534. 38 U.S.C.A. §§ 5302, 5313 (West 2014); 38 C.F.R. §§ 1.963, 1.965 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. The VCAA duties to notify and to assist do not apply to the claim of waiver recovery of an overpayment of VA disability compensation. See Barger v. Principi, 16 Vet. App. 132, 138 (2002). In any event, the Veteran received notification of the decision of the RO's Committee on Waivers and Compromises, dated in January 2011, setting forth the general requirements of applicable law pertaining to a claim for waiver of recovery of an overpayment, and was advised as to the nature of the evidence necessary to substantiate his claim. In its decision, the RO's Committee on Waivers and Compromises also informed the Veteran of the reasons that his claim was denied and the evidence considered in the denial. The general advisements were reiterated in the statement of the case issued in July 2011, which also provided the Veteran opportunity to identify or submit any evidence he wished considered in connection with his appeal. In short, the Veteran has been notified of the information or evidence necessary to substantiate his claim and the parties responsible for obtaining that evidence. Further, VA has made reasonable efforts to assist the Veteran in obtaining evidence in support of his claim. The Veteran was afforded the opportunity to testify at a hearing before the undersigned. The Court has held that 38 C.F.R. § 3.103(c)(2) requires that a VLJ who conducts a hearing fully explain the issue and suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the May 2013 Board videoconference hearing, the VLJ explained the issue, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to substantiate the claim. A hearing notice omission or deficiency is not alleged. Additionally, VA asked the Veteran to furnish evidence regarding his financial status, and he has submitted financial status reports in July 2010 and May 2016. The Board is unaware of any additional evidence which is available in connection with this appeal. Factual Background In May 2006, the Veteran filed an application for nonservice-connected pension benefits, wherein he reported no income including from Social Security or U.S. Railroad Pension. In August 2006, he submitted additional evidence in support of his claim, including a letter, dated August 7, 2006, that read, I, Robert L. Scott am receiving railroad disability as of starting date Aug. 05. You should have those and the paperwork I have sent. I am hoping that these would help in getting my disability. A November 2006 rating decision granted nonservice-connected pension benefits, effective May 5, 2006 (payment of such benefits is made the first of the month following the award). In a letter sent to the Veteran in December 2006, VA informed him of its decision, stating "We awarded your benefit because you have no income from May 5, 2006." The letter also informed him that he was to tell VA if his income changed or his net worth increased. There is no record of a response from the Veteran, such as a reminder that he was receiving railroad disability payments income. In November 2007, VA sent the Veteran notice that his monthly pension payment had been amended (i.e., increased) as he was to receive a cost of living adjustment effective December 1, 2007, and because it was VA's determination that his net countable income was $0. There is no record of a response from the Veteran, such as a reminder that he was in receipt of income consisting of railroad disability payments. In December 2007, VA sent the Veteran a letter to inform him that he would not receive an Eligibility Verification Report (EVR) that year, with the explanation that people without income other than their VA pension did not have to complete that form. The letter also informed the Veteran that he was to notify VA if he began receiving Social Security payments or if he "starts" (emphasis in original) getting other income such as earnings, interest from savings, pension, or other payments from anyone. There is no record of response to that letter from the Veteran in the claim file. In August 2008, VA conducted an Income Verification Match (IVM) and discovered that in 2006 the Veteran had received interest on his Bank of America bank account in the amount of $35, and unearned income from the U.S. Railroad Retirement Board in the amount of $2,317. In September 2008, VA sent notice to the Veteran and informed him that they were aware of his unreported income from 2006. He was asked to verify the income that was discovered by VA from the IVM system. There is no record of the Veteran having submitted a written response to this letter. In September 2008, VA sent a letter to the US Railroad Retirement Board seeking to verify the Veteran's income; no response was received. In November 2008, VA sent the Veteran notice that his monthly pension payment had been amended (i.e., increased) as he was to receive a cost of living adjustment effective December 1, 2008, and because it was their determination that his net countable income was $0. There is no record of a response from the Veteran. In December 2008, VA sent the Veteran a letter to inform him that he would not receive an EVR that year, again with the explanation that people without income other than their VA pension do not have to complete that form. The letter also informed the Veteran that he was to notify VA if he began receiving Social Security payments or if he "starts" (emphasis in original) getting other income such as earnings, interest from savings, pension, or other payments from anyone. There is no record of the Veteran having responded to the December 2008 letter. In July 2009, VA conducted another IVM and discovered that in 2007 the Veteran had received wages in the amount of $687 from AKAL Security Inc., and unearned income in the amount of $2,768 from the U.S. Railroad Retirement Board. In September 2009, VA submitted another request for income verification to the US Railroad Retirement Board. Later that month, the U.S. Railroad Retirement Board provided written notification to VA that the Veteran had been paid a gross amount of $20,732.64 in 2007 and $21,136.08 in 2008, and that he was projected to receive $22,245 in 2009. In September 2009, VA sent notice to the Veteran informing him that they were aware of his unreported income from 2007. He was asked to verify the income that had been discovered by VA from the IVM system. There is no record of the Veteran having submitted a written response to this letter. In December 2009, VA sent the Veteran a letter to inform him that he would not receive an EVR that year, again with the explanation that people without income other than their VA pension do not have to complete that form. The letter also informed the Veteran that he was to notify VA if he began receiving Social Security payments or if he "starts" (emphasis in original) getting other income such as earnings, interest from savings, pension, or other payments from anyone. In January 2010, VA sent notice to the Veteran that it proposed to stop his award effective February 1, 2007, due to the monies that he had received from the Railroad Retirement Board in 2007, 2008, and 2009. The Veteran was asked to complete an Improved Pension EVR and provide information for the years 2006 to the present. There is no record of the Veteran having submitted a written response to this form. In June 2010, VA stopped the Veteran's pension benefits, effective June 1, 2006. In a June 2010 letter, VA's Debt Management Center in St. Paul, Minnesota notified the Veteran that as a result of the retroactive termination of his pension, he was paid $45,108 more than he was entitled to receive. In July 2010, the Veteran submitted VA Form 5655, Financial Status Report. He indicated that his income included "Social Security" benefits in the amount of $1,853 and VA benefits in the amount of $985. His total monthly income was $2,848, but as VA pension was terminated just prior to that time, his total monthly income was $1,853. He listed two cars as assets (a 2000 Mercury Cougar and a 1983 Nissan 280ZX), but did not provide the worth of the vehicles. Total monthly expenses were $2,168, but this amount appears to include monthly payments on installment contracts and other debts consisting of $218 to American Finance, up to $150 to a credit card company (Bank of America), and $50 to a department store (Target), or $418 in total. If such amounts were not considered, the Veteran's total monthly living expenses (i.e., expenses to cover basic necessities) were $1,750. In October 2010, the Veteran filed a request for waiver of recovery of the debt of $45,108. In a January 2011 decision, the RO's Committee on Waivers and Compromises denied the Veteran's request for waiver of the debt. The Committee found that the Veteran had not committed fraud, misrepresentation, or bad faith in creating the debt, but that collection of the overpayment would not be against equity and good conscience because the Veteran knew or should have known that he was not entitled to the benefit. It was also noted that failure to repay the debt would constitute unjust enrichment of the Veteran at the government's expense. The Committee also stated that it could not consider the Veteran's waiver request based on financial hardship because he had failed to completely fill out VA Form 5655, Financial Status Report. At a May 2013 Board hearing, the Veteran and his representative testified that the Veteran had informed VA in August 2006 of the receipt of Railroad Retirement income after which VA should have immediately stopped his pension. He alleged administrative error on VA's part and asserted that the entire debt has been recouped. He felt that he paid back a debt that he did not owe on the basis of VA error for not recognizing that he had indeed timely reported his income and for not acting on that income report to avoid the overpayment. In July 2013, the Veteran submitted a statement indicating that he had lost his home and was now homeless due to VA's efforts to recover the debt. He also submitted a copy of a sheriff's notice of a dispossessory warrant. In July 2013, an inquiry of the Social Security Administration (SSA) reflected that the Veteran was entitled to a monthly benefit of $745 from April 2013. In a subsequent July 2013 rating decision, the Atlanta RO granted service connection for various disabilities, assigning a combined disability rating of 70 percent. Additional VA award and rating data show that the Veteran began to receive VA compensation in the amount of $1,272, effective January 1, 2012, and $1,293, effective December 1, 2012. A November 2013 Board decision granted waiver of recovery of an overpayment of nonservice-connected pension benefits in the amount of $31,574, finding in part that VA bears some but not total fault in the creation of the debt, and denied a waiver of recovery of the remaining overpayment in the amount of $13,534. In December 2013, the Veteran submitted a letter from the U.S. Railroad Retirement Board, indicating that his benefits were adjusted, effective January 2012. He would receive a gross benefit of $1,914.59 monthly. The Veteran appealed the denial portion of the Board's November 2013 decision to the Court, which in a July 2014 Order granted a Joint Motion of the parties, thereby vacating and remanding that part of the Board's decision that denied a waiver. In the Joint Motion, the parties stated that the Board erred when it included the Veteran's VA pension income (of which he was no longer in receipt) in its calculations to determine whether it would be against equity and good conscience (specifically, undue hardship) to recover the debt. A September 2014 Board remand directed that VA prepare an audit of the Veteran's account and request the Veteran for an updated VA Form 5655, Financial Status Report. In May 2016, VA prepared an audit of the Veteran's account, reflecting the amounts of VA benefits (pension and disability compensation) paid to the Veteran for the period from June 1, 2006 through April 2016, the benefits due to the Veteran for that same period, and the amounts recouped from his account during that period. For the specific period of the overpayment (June 1, 2006 to June 1, 2010), the Veteran was paid $45,108 when he was due $0. Beginning January 1, 2012, he was due monthly compensation payments. For the entire 2006 to 2016 period, he was paid $74,128.92 in total benefits (this amount included the $31,574 amount waived by the Board) when he was due $67,946.87, leaving a $6,182.05 overpayment. The overpayment of $6,182.05 was recouped through transactional payments from April 2011 through October 2013. Also in May 2016, the Veteran submitted VA Form 5655, Financial Status Report. He reported that his monthly income consisted of Railroad Retirement disability benefits in the amount of $2,000 and VA benefits in the amount of $1,300. His total monthly income was $3,300. He listed two cars as assets (apparently the same cars as listed in his previous Financial Status Report, without a value attached) and minimal cash (under $200) in each of two bank accounts. Total monthly living expenses from the report from the report amounted to $2,707. These included rent of $570, auto insurance of $342, food of $200, light of $175, water of $65, personal insurance of $75, "timesharing" of $305, cell of $45, cable of $65, internet of $65, credit card payments of $250-300, fuel of $200, and miscellaneous (car repair, church, and personal) of $300. In a statement on the form, he indicated that he had bad credit from having to pay back the money he owed, during which he lost his home. He stated he paid cash for everything. In statements received in December 2016 and January 2017, the Veteran asserted that he sought to "bring charges" against the chairwoman of the Committee on Waivers because she denied his claim and stated that he had not filed his financial status report on time. [A May 2016 supplemental statement of the case (SSOC) did not consider the Veteran's financial status report, but another SSOC was issued in June 2016 which did consider his May 2016 financial status report.] His representative argued in March 2017 and May 2017 statements that the overpayment was "erroneous at best" (essentially arguing that the debt was based solely on administrative error) and that the Veteran's financial status report showed undue hardship. It was also argued that the recent VA audit of the Veteran's account, showing an overpayment of $6,182.05, was at odds with the currently attributed overpayment amount of $13,534. Analysis An overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. 38 U.S.C.A. § 5302; 38 C.F.R. § 1.962. An overpayment may arise from virtually any benefits program administered pursuant to VA law, including pension. 38 C.F.R. § 1.965(a). The issue of the validity of a debt is a threshold determination that must be made prior to a decision on a request for waiver of the indebtedness. See Schaper v. Derwinski, 1 Vet. App. 430 (1991). The Committee on Waivers stated in its January 2011 decision that the overpayment was created as a result of a retroactive termination of VA pension benefits due to unearned income that was not previously reported by the Veteran. (The Board's November 2013 decision, however, had addressed the fact that the Veteran had notified VA of additional income from "railroad disability.") The period of the overpayment was June 1, 2006 to June 1, 2010. Improved pension is a benefit payable to a veteran of a period of war who meets statutorily-defined service, net worth, and annual income requirements; and who is permanently and totally disabled from nonservice-connected disability not the result of willful misconduct. 38 U.S.C.A. §§ 1502, 1503, 1521. The purpose of VA pension benefits is to provide a subsistence income for veterans of a period of war who are totally disabled and who are otherwise unable to maintain a basic, minimal income level. Pension benefits are based upon total family income, and the amount of pension benefits is adjusted based upon the number of dependents the veteran supports. Recipients of pension income are required to report any changes in income and number or status of their dependents in a timely fashion. 38 U.S.C.A. §§ 1521, 1522. Under governing law, the maximum annual rate of Improved (nonservice-connected) pension payable to a veteran varies according to the number of dependents. 38 U.S.C.A. §§ 1503, 1521; 38 C.F.R. §§ 3.3(a)(3), 3.23, 3.273. The rate of pension payable to an entitled payee is based on the amount of countable income received. Pension is payable at a specified annual maximum rate, which is reduced on a dollar for dollar basis by income on a 12-month annualized basis. 38 U.S.C.A. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23. The maximum annual rate of pension is established by statute every year and is reduced by the veteran's countable annual income. "Annual income" includes the veteran's own annual income, and, where applicable, the annual income of a dependent spouse and, with certain exceptions, the annual income of each child of the veteran in his custody or to whose support the veteran is reasonably contributing. 38 C.F.R. § 3.23(d)(4). Payments of any kind, from any source, shall be counted as income during the 12-month annualization period in which it was received unless it is specifically excluded by regulation. 38 C.F.R. §§ 3.271, 3.272. The maximum annual rates of improved pension are specified by statute in 38 U.S.C.A. § 1521, as increased from time to time under 38 U.S.C.A. § 5312. Each increase of the maximum annual rates of improved pension under 38 U.S.C.A. § 5312 is published in the "Notices" section of the Federal Register. 38 C.F.R. § 3.23(a). For example, effective December 1, 2005, the maximum annual rate of pension benefits for a single veteran with no dependents is $10,579. 38 C.F.R. § 3.23(a)(3); see VA Adjudication Procedures Manual M21-1, Part V; Subpart i, Chapter 1; see also https://benefits.va.gov/pension/current_rates_veteran_pen.asp. A veteran who receives VA pension must notify the VA of any material change or expected change in income which would affect his entitlement to receive or the rate of pension. Such notice must be furnished when he acquires knowledge that he will begin to receive additional income. Where reduction or discontinuance of a running award of improved pension is required because of an increase in income, the reduction or discontinuance shall be made effective the end of the month in which the increase occurred. 38 C.F.R. § 3.660. A review of the record found that the Veteran was paid improved pension benefits as a single veteran without a dependent from June 1, 2006 to June 1, 2010, on the basis of his report (in his original application) that he had no countable annual income. However, three months after filing his application, he notified VA that he received "railroad disability" which had begun the previous year. VA did not act upon such information and instead awarded him pension benefits as if his income was $0, and continued to award him such benefits based on no countable income (an assumption that repeatedly went unchallenged or uncorrected by the Veteran). It was not until an IVM was conducted in August 2008 (and another IVM in July 2009) that VA "discovered" unearned income from the U.S. Railroad Retirement Board in a monthly amount exceeding $2,000, as well as other lesser income. In September 2009 and January 2010, VA specifically requested the Veteran to verify his unearned income and provide income information for the years 2006 to the present, but there is no record of any response from him. The Board finds that the RO's action to retroactively terminate the Veteran's pension, effective June 1, 2006 (when payment for pension benefits began), was proper. Notably, the Veteran has not disputed the receipt or amount of the unearned income from the Railroad Retirement Board. Nor has he disputed the validity of the debt. In any case, it is clear from the record that his unearned income amounting to more than $2,000 per month was in excess of the maximum pension limit of $10,579 per year. For the overpayment period of June 1, 2006 to June 1, 2010, as shown by the audit, the Veteran was paid $45,108 over what he was due for the same period. It is noted that in an April 2017 statement the Veteran's representative argued that the May 2016 audit reflected a debt of $6,182.05 (since recouped), and that VA has not explained the discrepancy between this amount and the overpayment amount of $13,534 charged to the Veteran. Notably, the audit of the Veteran's account covered the entire period from June 1, 2006 through April 2016, and included amounts paid and received in pension benefits as well as disability compensation benefits (which began January 1, 2012). Consideration of the amounts paid and received for the smaller period of the overpayment shows a debt of $45,108, which reflects the initial pension debt attributed to the Veteran. The Board concludes that the overpayment amount of $45,108 was properly created because the Veteran received pension benefits to which he was not legally entitled. This amount, however, is not the amount for which the waiver request will be considered because the Board previously granted a waiver of recovery of $31,574 of that amount. Thus, the remaining $13,534 of that debt is at issue here. Pursuant to 38 U.S.C.A. § 5302(c) and 38 C.F.R. § 1.965(b), a finding of fraud, misrepresentation, or bad faith precludes a waiver of recovery of an overpayment. The RO's Committee on Waivers concluded in January 2011 that the facts in this case do not show the mandatory bars to waiver in the Veteran's case, and the Board agrees. There is no evidence to conclude that the Veteran intended to defraud the government, deceive VA, or seek unfair advantage. The RO's Committee on Waivers denied the Veteran waiver on the basis that recovery of the overpayment would not be against equity and good conscience. 38 U.S.C.A. § 5302(a); 38 C.F.R. § 1.963(a). The standard of "equity and good conscience" will be applied when the facts and circumstances in a particular case indicate a need for reasonableness and moderation in the exercise of the Government's rights. The decision reached should not be unduly favorable or adverse to either side. The phrase "equity and good conscience" means arriving at a fair decision between the obligor and the government. In making this determination, consideration will be given to the following elements, which are not intended to be all inclusive: 1. Fault of the debtor. Whether the actions of the debtor contributed to the creation of the debt. 2. Balancing of faults. Weighing of the fault of the debtor against that of the VA. 3. Undue hardship. Whether collection would deprive the debtor or family of basic necessities. 4. Defeat the purpose. Whether withholding of benefits or recovery would nullify the objective for which benefits were intended. 5. Unjust enrichment. Whether failure to make restitution would result in unfair gain to the debtor. 6. Changing position to one's detriment. Whether reliance on VA benefits resulted in relinquishment of a valuable right or the incurrence of a legal obligation. 38 C.F.R. § 1.965(a). According to the determination by the Committee on Waivers, the overpayment in this case was created as a result of a retroactive termination of the Veteran's pension benefits from June 1, 2006 to June 1, 2010. Based on a review of the entire record, the Board concludes that the Veteran and VA both bear partial responsibility for the creation of the overpayment, with VA bearing more of the fault. This finding is consistent with the Board's November 2013 decision in allocating fault on both parties but attributing more fault on VA than on the Veteran. Consequently, the Board in November 2013 waived recovery of $31,574 and denied waiver of recovery of $13,574, which is between one-quarter and one-third of the amount of the original debt of $45,108. Of the remaining debt, the Board continues to find that there was some, but not all, fault on the Veteran's part in the debt creation. Beyond the initial notification in August 2006 of the receipt of railroad disability, which was evidently overlooked by the VA, the Veteran did not inform VA of his income despite numerous opportunities to correct VA's miscalculation of his income status. He was informed by numerous pension letters (in December 2006, November 2007, December 2007, November 2008, December 2008, December 2009, and January 2010) that his payments would be affected by receipt of income, about which he must notify VA if there were any changes, and that his award was based on his income of $0. Even after VA in September 2008 and September 2009 requested him to verify income discovered in IVMs, the record reflects that he did not respond. Clearly, at various times during the period of the overpayment, either the Veteran or the VA could have acted to minimize the amount of the debt. The Veteran knew, or should have known, through the multiple VA pension letters that his benefits were based on an incorrect income amount, and that his payments were erroneous. In fact, he was twice asked to verify his income, but it was only after receipt of a letter notifying him of his pension termination that VA finally heard from him. Regarding VA's part in the overpayment creation, it certainly could have stopped his payments at a much earlier time if it acted on the initial report of railroad disability income, or when it learned of the Veteran's income through the IVMs and the Veteran failed to respond to inquiries to verify such income. VA's failure to take administrative action to stop the pension payments and the Veteran's failure to provide income information when requested, or when he should have known to do so, both led to the creation of the overpayment in this case. The Veteran and his representative appear to argue that the creation of the debt was the solely the result of administrative error, without fault on the part of the Veteran, and therefore no overpayment should have been charged to the Veteran in the first instance. The Board disagrees, and as earlier discussed, finds that some fault is attributable to the Veteran, especially as he knew or should have known that the pension payments were erroneous but nevertheless continued to accept the payments. In addition, the Board must also consider whether recovery of the debt would result in financial hardship to the Veteran. The record indicates that the pension overpayment has been recouped in full, by November 1, 2013 according to the audit. The Veteran submitted financial status reports in July 2010 and May 2016. Both reports show that his monthly income exceeded his monthly expenses, by $680 in 2010 and by $593 in 2016. However, as noted by the Court in July 2014, the 2010 calculation included consideration of $985 in income from VA pension benefits which the Veteran was no longer receiving . Thus, his monthly expenses in July 2010 (which included monthly payments on installment contracts and other debts of approximately $418) instead exceeded his then $1,853 monthly income. The Board also notes that the Veteran has very minimal assets. Based on the income and expense information in the record, the Board concludes that the record, as it now stands, does not support that recovery of the debt had endangered the Veteran's ability to provide for his basic necessities. The Veteran appeals for a grant of his waiver request in part on the basis of financial hardship; however, his monthly income as indicated on his financial status reports exceeded his monthly living expenses. The July 2010 report on its face appears to show that expenses exceeded income. Although the Veteran has reported very minimal assets except for two old cars and a small amount of cash, when the amounts due monthly to his creditors ($418) are not considered, his monthly net income as reported in July 2010 actually exceeded his monthly expenses by $103. The Board emphasizes that the VA debt is a valid debt to the government, and there is no reason that the Veteran should not accord VA the same consideration that he accords his private creditors to include credit card and finance companies. In addition, the record reveals no other factors which would have made recovery of the overpayment inequitable, as discussed further below. Another factor to be considered is whether the recovery of the overpayment defeated the purpose for which the benefits were intended. As earlier indicated, pension benefits provide a subsistence income veterans who are unable to maintain a basic, minimal income level. In this case, the Veteran was not entitled to VA pension due to his receipt of railroad benefits. It is not shown that recovery of the pension debt defeated the purpose of the benefits because he was not entitled to such benefits during the period of the overpayment due to excessive income. The Board also finds that failure to have made restitution would have resulted in unfair gain to the Veteran because he received monetary benefits to which he had no entitlement. VA made payments of pension benefits based on the erroneous assumption that the Veteran had no income. VA had apparently overlooked his August 2006 statement about being in receipt of railroad benefits, and continued to issue him pension payments on the stated basis that he had no income. There is no evidence to show that the Veteran took any action to correct VA's mistaken belief that his sole income source was his VA pension. Under such circumstances, to allow him to retain the money that was paid by VA would constitute unjust enrichment. The Board must consider whether reliance on benefits resulted in relinquishment of a valuable right or the incurrence of a legal obligation. The Veteran has not contended, nor does the evidence show, that he relinquished a valuable right or incurred a legal obligation in reliance on the VA pension to which he had no legal entitlement. He has argued that he lost his house (to foreclosure) on account of VA's debt recovery actions and that he now had bad credit. However, there is no evidence that his reliance on pension benefits led to the loss of his house. The financial status report in July 2010 shows that he was two months behind in paying his mortgage, and the financial status report in May 2016 shows that he rented a dwelling for nearly half of what he previously had paid in mortgage payments. The reasons for losing his house to foreclosure, thereby affecting his credit rating, rather than selling his house are not known. Further, recoupment of the debt is not shown to have deprived him of the basic necessity of a dwelling space, as his financial status report in 2010 indicates (as it shows his income exceeded his necessary expenses). In summary, the Board concludes that the facts of this case, when weighed against the various elements to be considered, demonstrate that recovery of the overpayment of pension benefits was not against equity and good conscience. VA does not bear sole responsibility for the creation of the debt. The Veteran is partially at fault in the creation of the debt, and failure to have repaid the debt would have resulted in unfair gain by him. Also, recovery of the overpayment was not shown to have defeated the purpose for which the benefits were intended, and he had not relinquished a valuable right or incurred a legal obligation in reliance on his VA benefits. As to the question of financial hardship, persuasive evidence has not been presented to show that VA's right to restitution should be moderated. It is emphasized that the Board has already granted waiver of recovery of a large portion of the originally created pension debt, and finds that waiver of recovery of the remaining portion is not in order. As the preponderance of the evidence is against the petition for waiver, the benefit of the doubt rule does not apply, and the appeal in the matter must be denied. 38 U.S.C.A. § 5107(b). ORDER The appeal seeking waiver of recovery of an overpayment of nonservice-connected pension benefits in the amount of $13,534 is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs