Citation Nr: 1803854 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 11-31 952 ) 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 VA disability compensation benefits in the amount of $11,062.33. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from July 2000 to November 2000 and from February 2003 to December 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a determination by the Committee on Waivers and Compromises of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran resides within the jurisdiction of the RO in Detroit, Michigan. FINDINGS OF FACT 1. An April 4, 2010 letter, which was not returned as undeliverable, was sent to the Veteran that advised him of his overpayment and of his right to request a waiver of this debt. This letter included an enclosure (titled Notice of Rights and Obligations) that provided further information regarding the Veteran's right to request a waiver and of the procedures for submitting such an application, to include reference to the 180 day period to file such. 2. The Veteran's request for a waiver of his overpayment was received on May 26, 2011, which was more than 180 days after the April 4, 2010 letter. 3. The Veteran has not demonstrated that as a result of an error by either VA or the postal authorities, or due to other circumstances beyond the Veteran's control, there was a delay in receipt of notification of indebtedness beyond the time customarily required for mailing (including forwarding). 4. The April 2010 notice of indebtedness letter was mailed to the Veteran's address of record at the time. It was not returned to VA as being undeliverable, and there is no evidence of trickery, malfeasance, or misleading behavior on the part of VA. CONCLUSION OF LAW A timely request for waiver of recovery of an overpayment of VA disability compensation benefits in the amount of $11,062.33 was not filed by the Veteran. 38 38 U.S.C.A. § 5302(a) (West 2014); 38 C.F.R. § 1.963 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Nevertheless, VCAA provisions are not applicable to waiver of recovery of overpayment claims found in 38 U.S.C.A. § 5300, because Chapter 53 contains its own notice provisions. See Barger v. Principi, 16 Vet. App. 132, 138 (2002); see also Lueras v. Principi, 18 Vet. App. 435, 438-39 (2004) (noting that VCAA provisions are inapplicable to waiver of indebtedness claims). In any event, the Board points out that the RO, in the decision on waiver of indebtedness, and in an accompanying letter, has explained to the Veteran the bases for denial of the claim, and afforded him the opportunity to present information and evidence in support of the claim. The Veteran has not referenced any pertinent, obtainable evidence that remains outstanding. Accordingly, the Board finds that these actions satisfy any duty to notify and assist the Veteran. Therefore, the Board finds that no further action is necessary under the VCAA. Recovery of Overpayment 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, compensation, dependency and indemnity compensation, education educational assistance benefits and subsistence allowance, insurance benefits, burial and plot allowances, clothing allowance, and automobile or other conveyance and adaptive equipment allowances. 38 C.F.R. § 1.956(a). Recovery of overpayment of any benefits made under laws administered by VA may be waived if there is no indication of fraud, misrepresentation, or bad faith on the part of the person or persons having an interest in obtaining the waiver. 38 U.S.C.A. § 5302(c); 38 C.F.R. § 1.963(a). As in this case, when notice of indebtedness is dated on or After April 1, 1983, a request for waiver of an indebtedness shall only be considered if the request is made within 180 days following the date of a notice of indebtedness by the VA to the debtor. 38 C.F.R. § 1.963(b). The 180 day period may be extended if the individual requesting waiver demonstrated to the Chairperson of the Committee on Waivers and Compromises that, as a result of an error by either the Department of Veterans Affairs 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. 38 C.F.R. § 1.963 (b). The Board additionally notes that in appropriate circumstances, a statutory filing period may be equitably tolled due to the conduct of VA. See Bailey v. West, 160 F.3d 1360, 1365 (Fed. Cir. 1998). Equitable relief is granted only rarely, such as where a claimant actively pursued judicial remedies but filed a defective pleading or where a claimant was induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. Pfau v. West, 12 Vet. App. 515, 517 (1999), citing Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990). The United States Court of Appeals for the Federal Circuit specifically held in Bailey that equitable tolling in the paternalistic veterans' benefits context does not require misconduct (such as trickery); however, the decision in Bailey does require the veteran to have been "misled by the conduct of his adversary into allowing the filing deadline to pass." Bailey, 160 F.3d at 1365; see also (William) Smith v. West, 13 Vet. App. 525 (2000). In this case, the Veteran was awarded service connection for posttraumatic stress disorder (PTSD) in an October 2004 rating decision. In a June 2006 rating decision, the Veteran was granted an increased, 70 percent disability rating for his PTSD and entitlement to TDIU was granted. In both instances, the Veteran was provided with a VA Form 21-8764, "Disability Compensation Award Attachment-Important Information,"" which explained his eligibility for VA compensation benefits. In October 2004, the Veteran was paid for one dependent child, and in June 2006, he was paid for 2 dependent children. In April 2007, he was awarded benefits for his spouse and 3 dependent children. In July 2009, a report of incarceration was received from the Michigan Offender Tracking System, indicating that the Veteran was to be incarcerated, effective October 1, 2009. Pursuant to VA statute and regulations, a Veteran who is incarcerated in a federal, state, or local penal institution in excess of 60 days for conviction of a felony committed after October 7, 1980, and who has a combined rating of 20 percent or more shall receive the rate of compensation of 10 percent payable beginning on the 61st day of incarceration. All or part of the compensation not paid to the Veteran may be apportioned to the Veteran's spouse, child, or children on the basis of individual need. 38 U.S.C.A. § 1114 (a), 5313 (West 2014); 38 C.F.R. § 3.665 (2017). In short, these provisions create a limitation on payment of compensation to persons incarcerated for conviction of a felony. However, in such instances, VA must notify the Veteran that his benefits are subject to reduction due to his incarceration, of the rights of dependents to an apportionment while the person is incarcerated, and conditions under which payments to the person may be resumed upon release from incarceration. 38 C.F.R. § 3.665(a). In February 2010, the Veteran was notified of a proposal to adjust his VA compensation benefits due to his incarceration in excess of 61 days and that an overpayment may have been created as a result; the proposed reduction was to become effective December 21, 2009. He was notified that the reduction would go into effect if he did not notify VA of his disagreement with the proposed reduction within 60 days. He was also notified that the adjustment in VA compensation benefits may result in an overpayment of benefits, and that he would be notified of the exact amount of the overpayment and give repayment information at a later date. The Veteran submitted a statement, also in February 2010, confirming that he was incarcerated and requested an apportionment be paid to his dependents. In March 2010, the Veteran was notified of that the reduction of VA compensation benefits had become effective December 21, 2009. Contemporaneously, the Veteran and his spouse were notified that an apportionment of the remainder of his benefits had been granted. In both February 2010 and March 2010, he was informed that he was being paid as a Veteran with four dependents. He was also notified that failure to notify VA of changes will result in an overpayment which is subject to recovery. In April 2010, the Veteran was notified by the Debt Management committee that there was an overpayment of $11,062.33 was created in the period from December 21, 2009 and March 31, 2010 due to his incarceration. He was informed that he had the right to dispute the debt and the right to request waiver; he was provided with a copy of a document entitled, Notice of Rights and Obligations. In May 2011, the Committee on Waivers received a Financial Status Report and statement asserting that a hardship will be created by payment of the debt. He requested a waiver of recovery of the overpayment of $11,062.33. Turning to the July 2011 decision on appeal, the Committee on Waivers, in a Decision on Waiver of Indebtedness, denied the Veteran's request for a waiver of an overpayment. The decision noted that the date the waiver request was received was May 26, 2011, and that the Veteran did not dispute the date he filed his waiver request. In this regard, in the May 2011 request for waiver and August 2011 notice of disagreement, the Veteran claimed that an injustice had occurred because the overpayment had occurred during his imprisonment; he alleged that he did not receive notice of the potential overpayment or the April 2010 letter informing him of the actual amount of the overpayment. He also alleged that the overpayment was the fault of VA because VA paid him in full during his incarceration and did not reduce the award immediately upon being informed of his incarceration. 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 indebtedness shall only be considered if it is made within 180 days from the date of notification of the indebtedness that is issued by VA to the debtor. See 38 U.S.C.A. § 5302(a) (West 2014); 38 C.F.R. § 1.963(b) (2017). 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 (including forwarding). See 38 C.F.R. § 1.963(b)(2) (2017). After review of the record, the Board concludes that a waiver request was not filed within 180 days of the date of notice of indebtedness. In this case, as discussed above, the Veteran's request for a waiver of his overpayment was received on May 26, 2011, which was more than 180 days after the April 4, 2010 letter that advised him of the amount of his indebtedness. As such, the Board concludes that a request for waiver was not filed within 180 days of the date of notice of indebtedness. As referenced, 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 (including forwarding). In this regard, the Veteran has alleged that he never received notice regarding the 180 day time limit for filing a waiver request. As noted earlier, the Veteran asserts that, because the overpayment had occurred during his imprisonment, he was not at fault. He alleges that he did not receive notice of the potential overpayment or the April 2010 letter informing him of the actual amount of the overpayment because he was incarcerated. He also alleges that the overpayment was the fault of VA because VA paid him in full during his incarceration and did not reduce the award immediately upon being informed of his incarceration. The Board notes that the Veteran accurately referenced the fact that the overpayment occurred as a result of his incarceration, and that there was a delay between the notice of the start of the Veteran's incarceration and when the reduction in VA compensation benefits occurred. However, as referenced above, the Veteran was informed in February 2010 that an overpayment may have occurred as a result of his incarceration and that he would be notified at a later date of the exact amount of overpayment and method for repayment. The Board notes that the Veteran responded to the February 2010 notice, wherein he confirmed his incarceration and requested that the excess monies go to his dependents. As such, the Board finds that the Veteran was on notice of a potential overpayment and that he did not disagree with that finding. Nevertheless, the issue currently on appeal involves the timeliness of a waiver of an overpayment, which as referenced above, has a 180 day time limit for filing a waiver request. As to the Veteran's contention that he never received the April 2010 notice of the amount of the overpayment or the 180 day time limit for filing a waiver request, the crucial issue is whether the Veteran has demonstrated that, as a result of an error by either VA or the postal authorities, or due to other circumstances beyond the Veteran's control, there was a delay in receipt of notification of indebtedness beyond the time customarily required for mailing (including forwarding). Upon review, the Board concludes that such has not been demonstrated. As previously referenced, 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). Clear evidence to the contrary is required to rebut the presumption of regularity. See id. A copy of the April 4, 2010 from the Debt Management Center is included in the Veteran's claims file, which was addressed to the Veteran. There is no indication that such document was returned as undeliverable. In addition, the Veteran referenced the exact amount of the overpayment in his May 2011 request for a waiver of recovery of the overpayment. As such, the Board finds that VA sent the Veteran the April 4, 2010 letter, which advised him of his overpayment and of his right to request a waiver of this debt, and that it is reasonable to assume that the Veteran received the document. In addition, this letter stated that the Veteran had the right to dispute the debt and the right to request waiver, and that information regarding these options is in an enclosed document entitled, Notice of Rights and Obligations. While the referenced enclosed document titled Notice of Rights and Obligations is not of record, enclosing such a document is a VA government action and the Board finds that the presumption of regularity attaches to the enclosure of such document. As such, the enclosure is presumed to have been mailed with the April 4, 2010 letter. Upon review, the Board finds no clear evidence to the contrary of record sufficient to rebut the presumption of regularity that supports that such letter and enclosure were sent to the Veteran. In this regard, the Veteran's statement of non-receipt, by itself, does not constitute clear evidence to the contrary to rebut the presumption of regularity. See Schoolman v. West, 12 Vet. App. 307 (1999) ("appellant's statement of nonreceipt does not by itself constitute the type of clear evidence needed to rebut the presumption of regularity that the notice was sent"). As such, the Board concludes that the Veteran has not demonstrated, as he is required to do under 38 U.S.C.A. § 5302(a) (West 2014) and 38 C.F.R. § 1.963(b) (2017), that as a result of an error by either VA or the postal authorities, or due to other circumstances beyond the Veteran's control, there was a delay in receipt of notification of indebtedness beyond the time customarily required for mailing (including forwarding). In review, the Board finds that the April 4, 2010 letter, which was not returned as undeliverable, was sent to the Veteran that advised him of his overpayment and of his right to request a waiver of this debt. It is presumed that this letter included an enclosure (titled Notice of Rights and Obligations) that provided further information regarding the Veteran's right to request a waiver and of the procedures for submitting such an application, to include reference to the 180 day period to file such. The Veteran's request for a waiver of his overpayment was received on May 26, 2011, which was more than 180 days after the April 4, 2010 letter. Further, the Board finds that extension of the 180 day period is not warranted because the Veteran has not demonstrated that as a result of an error by either VA or the postal authorities, or due to other circumstances beyond the Veteran's control, there was a delay in receipt of notification of indebtedness beyond the time customarily required for mailing (including forwarding). The Board acknowledges that Veteran's argument that the overpayment was not his fault because it fell during his incarceration and did not reduce the award immediately upon being informed of his incarceration. Nevertheless, the Board must point out that the Veteran was informed of the possible overpayment and that he would be notified of the exact amount at a later date, and that he would be responsible for repayment of any overpayment. The threshold issue is whether the request for a waiver of overpayment was timely, and in determining that the request for waiver was not determined to be timely, the Board need not adjudicate whether the Veteran meets the criteria for a recovery of overpayment. In conclusion, a timely request for waiver of an overpayment was not filed and the Veteran's claim therefore must be denied. 38 U.S.C.A. § 5302(a) (West 2014); 38 C.F.R. § 1.963(b) (2017). ORDER The request for a waiver of recovery of an overpayment of VA disability compensation benefits in the amount of $11,062.33 is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs