Citation Nr: 1751969 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 13-25 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) educational assistance benefits in the amount of $2,734.60, to include the issue of whether the request for a waiver was timely filed. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from July 2006 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2013 decisions of the VA Regional Office (RO) and Education Center in Muskogee, Oklahoma. In June 2015, the Board remanded the issue on appeal to schedule the Veteran for a RO hearing. As the action specified in the remand has been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). FINDINGS OF FACT 1. On October 31, 2007, the Veteran was notified that an overpayment of $2,734.60 was created as a result of her not attending school for the terms dated from June 12, 2006 to September 3, 2006, September 4, 2006 to November 26, 2006, and November 27, 2006 to March 4, 2007. 2. The Veteran's request for a waiver of overpayment was received on January 23, 2013, which was more than 180 days after the October 31, 2007 notification of indebtedness. 3. The Veteran has not demonstrated that as a result of an error by either VA or the postal authorities, or due to the other circumstances beyond the Veteran's control, there was a delay in the receipt of notification of indebtedness beyond the time customarily required for mailing (including forwarding). CONCLUSION OF LAW The Veteran's request for a waiver of overpayment of $2,734.60 was not timely filed. 38 U.S.C.A. § 5302(a) (West 2014); 38 C.F.R. § 1.963(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), VA has certain duties to notify and assist a veteran in the claims process. The United States Court of Appeals for Veterans Claims, however, has held that the VCAA does not apply to cases involving a waiver of an overpayment debt and that the relevant statute pertaining to waivers contains its own notice provisions. See Barger v. Principi, 16 Vet. App. 132 (2002). In this regard, in an October 31, 2007 letter (which the Board finds below was sent to the Veteran), the Veteran was advised of the amount of her overpayment and of her right to request a waiver of this debt. The letter stated that "[y]ou have the right to dispute the debt and the right to request waiver. If you request waiver, you also have the right to request an oral hearing." The letter additionally stated that "[i]nformation regarding these options is on the enclosed document entitled, Notice of Rights and Obligations." The Board notes that the referenced enclosed document titled Notice of Rights and Obligations was not of record. However, under the presumption of regularity, "it is presumed that government officials 'have properly discharged their official duties.'" See Ashley v. Derwinski, 2 Vet. App. 307 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 6, 71 L.Ed. 131 (1926)). As enclosing a document entitled Notice of Rights and Obligations with the October 31, 2007 letter is a VA government action, the Board finds that the presumption of regularity attaches, and that the enclosure, which presumably contained information regarding the Veteran's right to request a waiver and of the procedures for submitting such an application (along with reference to the 180-day period to file such), is presumed to have been mailed with the October 31, 2007 letter. The Board therefore finds that the specific notice provisions applicable here were followed. See 38 U.S.C.A. § 5302(a) (West 2014) (stating that VA "shall include in the notification to the payee [of indebtedness to VA] a statement of the right of the payee to submit an application for a waiver under this subsection and a description of the procedures for submitting the application"). Waiver of Overpayment The Veteran contends that she should be granted a waiver of the debt incurred from the overpayment that was created when she failed to attend courses at ITT Technical Institute during the periods from June 12, 2006 to September 3, 2006, September 4, 2006 to November 26, 2006, and November 27, 2006 to March 4, 2007, because at the time she was not mentally capable of handling school. She explained that she had mistakenly taken advice to enroll in school after returning from Iraq even though she was not psychologically ready. If the Veteran had been diagnosed and treated for posttraumatic stress disorder at the time, she said she would not have enrolled in school. See May 2013 VA Form 9, February 2015 Appellant's Brief, and May 2016 RO hearing transcript. She said she was unaware that the $2,734.60 which was deposited into her account was for educational assistance. A few years later, when she went back to school, she said she learned that the money she had received was for educational assistance and that she had incurred the debt. The validity of the debt and the untimeliness of the waiver request are not disputed by the Veteran. Id. The threshold question in any claim concerning a request for a waiver of debt from overpayment is whether the waiver request was timely. Under the applicable criteria, a request for waiver of an indebtedness made after April 1, 1983 (other than loan guaranty) shall only be considered if it is made within 180 days following the date of a notice of indebtedness issued by the VA to the debtor. 38 U.S.C.A. § 5302(a); 38 C.F.R. § 1.963(b). 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). The Veteran applied for educational assistance benefits and had received payments totaling $2,734.60 for the terms dated from June 12, 2006 to September 3, 2006, September 4, 2006 to November 26, 2006 and November 27, 2006 to March 4, 2007. According to an August 30, 2007 communication, a school certifying official at ITT Technical Institute informed VA that the Veteran had not attended school for those terms. Based on that information, an overpayment was created. An October 31, 2007 notification letter from the VA Debt Management Center shows that the Veteran was mailed notice of the overpayment in the amount of $2,734.60. As discussed above, the October 31, 2007 letter stated that "[y]ou have the right to dispute the debt and the right to request waiver. If you request waiver, you also have the right to request an oral hearing" and that "[i]nformation regarding these options is on the enclosed document entitled, Notice of Rights and Obligations." There is no indication that the October 2007 letter was returned as undeliverable, or that the Veteran's address had changed at that time. Consequently, based on the presumption of regularity and the Veteran's responsibility to keep VA informed of her updated address, a delay in receipt of the notification of indebtedness due to an error by either VA or the postal authorities, or due to other circumstances beyond the Veteran's control, is not established. Accordingly, there is no basis for extending the time limit for receipt of the Veteran's waiver request beyond the additional 180 days following the October 31, 2007 notice of indebtedness. 38 C.F.R. § 1.963(b). The Veteran's request for a waiver of overpayment was received on January 23, 2013, which was more than 180 days after the October 31, 2007 letter. A review of the claims file shows no documents which could be construed as a request for waiver prior to that time. Notably, the Veteran, in multiple statements, has indicated that she was aware that her request for waiver was untimely, thus demonstrating her knowledge of the time limit for filing the waiver. Under these circumstances, the Board finds that the Veteran's request for a waiver of overpayment is untimely; and therefore, the claim is denied. 38 U.S.C.A. § 5302(a); 38 C.F.R. § 1.963(b). In arriving at this conclusion, the Board is sympathetic to the Veteran's contention that she would not have enrolled in school, thereby incurring the debt, had she realized prior to enrollment that she had PTSD and had received treatment. However, by her own admission, she was aware that she had received the monetary benefits in her bank account, and that she did not respond to the notification of indebtedness in a timely manner. Also, she has not suggested that receipt of the notification of indebtedness was delayed, thus warranting consideration to extend the 180-day time limit. Accordingly, as a timely request for waiver of overpayment was not filed, the Veteran's claim must be denied. Id. ORDER As the Veteran's request for a waiver of recovery of an overpayment of education assistance benefits in the amount $2,734.60 was not timely, the appeal for waiver of the overpayment is denied. ____________________________________________ LESLEY A. REIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs