Citation Nr: 1805027 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 09-23 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether the debt in the amount of $14,717.00 for overpayment of VA monetary benefits is valid. 2. Entitlement to waiver of recovery of an overpayment of VA monetary benefits in the amount of $14,717.00. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran had active military service from March 1974 to May 1975. He also had periods of service from July 1977 to July 1980 and July 1983 to March 1987 but these periods of service are not considered eligible for VA benefits. This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 decision by the Committee on Waivers and Compromises (COWC) at the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2014, the case was remanded for further development. FINDINGS OF FACT 1. The Veteran was overpaid pension benefits in the amount of $14,717 as a result of his initial inaccurate reporting of annual income. 2. In December 2007, VA notified the Veteran of the overpayment. 3. The Veteran did not submit a request for waiver of overpayment within 180 days of the December 2007 notification. CONCLUSIONS OF LAW 1. The overpayment was legally created and the underlying debt is valid. 38 U.S.C. § 5112, 5302 (2012); 38 C.F.R. §§ 1.911, 1.956, 1.962, 3.500, 21.9635 (2017). 2. A timely request for waiver of recovery of the overpayment was not filed by the Veteran. 38 U.S.C.§ 5302 (a) (2012); 38 C.F.R. § 1.963 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, the Court has held that the notice and duty-to-assist provisions of the VCAA do not apply to claims for waiver of recovery of overpayment. See Barger v. Principi, 16 Vet. App. 132 (2002); see also Lueras v. Principi, 18 Vet. App. 435 (2004). Nevertheless, the legal provisions pertaining to the collection of debts owed by reason of participation in a VA benefits program are contained in 38 C.F.R. § 1.911 Under section 1.911, when VA has determined that a debt exists by reason of an administrative decision or by operation of law, VA shall promptly demand, in writing, payment of the debt. VA shall notify the debtor of his or her rights and remedies and the consequences of failure to cooperate with collection efforts. In this case, this notification was performed in a December 2007 letter. The Board also notes that the RO appropriately complied with the May 2014 remand by contacting the Veteran in order that he might provide an updated financial status report; by adjudicating whether the $14,717 debt is valid; and by readjudicating the claim for waiver of the overpayment. No further assistance is required. (Notably, the provision of an updated financial status report was actually not necessary in this case because, as explained below, the Veteran's request for waiver is not considered timely). II. Analysis A. Validity of the debt An overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. See 38 U.S.C. § 5302; 38 C.F.R. § 1.962. In order for the Board to determine that the overpayment was not properly created, such that the debt was not valid, it must be established that the appellant was legally entitled to the benefits in question or, if there was no legal entitlement, then it must be shown that VA was solely responsible for the veteran being erroneously paid benefits. Administrative errors include all administrative decisions of entitlement, whether based upon mistake of fact, misunderstanding of controlling regulations or instructions, or misapplication of law. VAOPGPREC 2-90 (July 17, 1989), 55 Fed. Reg. 27757 (1990). Sole administrative error connotes that the appellant neither had knowledge of nor should have been aware of the erroneous award. Further, neither the appellant's actions nor her failure to act must have contributed to payment pursuant to the erroneous award. 38 U.S.C. 5112 (b)(9), (10); 38 C.F.R. § 3.500 (b)(2); Jordan v. Brown, 10 Vet. App. 171 (1997). A finding of sole administrative error requires not only error on the part of VA, but that the beneficiary is unaware that the payments are erroneous. In general, any veteran whose disability is rated not less than 30 percent shall be entitled to additional compensation for his or her eligible dependents, including a child under the age of 18 years. 38 U.S.C.A. § 1115. That additional compensation may be extended beyond the child's eighteenth birthday based upon school attendance if the child was at that time pursuing a course of instruction at an approved educational institution and a claim for such benefits is filed within one year from the child's eighteenth birthday. 38 C.F.R. § 3.667 (a)(1). In general, DEA benefits are payable to a child of a veteran who has a total disability permanent in nature resulting from a service-connected disability. 38 C.F.R. § 21.3021. However, payment of both a dependency allowance as part of a veteran's disability compensation benefits and DEA benefits constitutes a duplication of benefits that is strictly prohibited after the child has elected to receive the latter benefit. See 38 U.S.C. § 3562; 38 C.F.R. §§ 3.667 (f), 3.707, 21.3023. A child who is eligible for educational assistance and who is also eligible for a dependency allowance as part of a veteran's disability compensation based on school attendance must elect whether he or she will receive educational assistance or compensation. An election of educational assistance is a bar to subsequent payment of compensation on account of the child based on school attendance on or after the age of 18 years. 38 C.F.R. § 21.3023 . In this case, in an October 2002 claim for non-service connected pension, the Veteran reported that his household consisted of himself, his spouse and his daughter, born March [redacted], 1994, and that they received $0 in annual household income. In a November 2003 rating decision, the RO granted entitlement to non-service connected pension effective October 25, 2002, finding that the Veteran met the disability requirement for this award. In a January 2004 decision, the RO noted that it had approved the Veteran's claim for pension. The RO indicated that the Veteran was being paid $1043 per month effective November 1, 2002 and $1057 per month effective December 1, 2003. The RO also noted that it had decreased the rate of pension to $79 per month effective January 1, 2004 based on the Veteran's estimated household income effective that date. The RO indicated that once it had received an eligibility verification report (EVR) with current figures for household income from the Veteran it would adjust his monthly pension amount. In a January 2004 EVR, the Veteran again reported that he received $0 annual income and also did not report that his spouse or child received any annual income. A February 2004 report of contact then indicates that the Veteran informed the RO that he had no income other than what he received from VA. In a February 2004 letter, the RO noted that based on the Veteran's reporting, it had amended his monthly pension payments to $1079 per month effective December 1, 2003 and to $824 per month effective March [redacted], 2012 (based on the Veteran's daughter turning 18 and no longer being classified as a dependent). In a September 2007 letter, the RO indicated that it had received information from the Social Security Administration (SSA) that the Veteran had begun receiving Social Security benefits effective January 2005, with his first check of $1099 received in October 2006. The RO was also informed that the Veteran's SSA benefits were increased to $1,135 in December 2006 and to $1134.50 per month effective September 2007. As a result, the RO proposed to reduce the Veteran's monthly pension amounts. In pertinent part, these proposed reductions included from $1154 per month to $55 per month effective November 1, 2006; from $1192 per month to $57 per month effective December 1, 2006; and from $1192 per month to $58 per month effective October 1, 2007. The RO noted that the adjustment in the VA benefits, if implemented, would result in the Veteran being assessed an overpayment. In a December 2007 letter, the RO notified the Veteran that it was implementing the reduction in the Veteran's benefits that it had proposed in September 2007 and that because of this change he had been paid too much and would be assessed an overpayment. In a December 2007 letter, the RO indicated that the Veteran had been overpaid $14,717 in non-service connected pension benefits. As a result, the RO planned to being withholding a portion of his pension benefits in order to repay this debt beginning in March 2008. The RO noted that the Veteran had a right to dispute the debt, the right to request a waiver and the right to request an oral hearing. The RO attached specific notice of these rights on a VA information sheet entitled Notice of Rights and Obligations. In July 2008, the Veteran requested a waiver of the debt and an accounting of how the overpayment was created. In March 2017, the RO made an official determination that the $14,717 debt was properly created. The RO also provided an accounting of the determination of the amount of the debt. The RO noted that the Veteran had been overpaid $1,099 in November 2006; had been overpaid $11,350 for the period from December 1, 2006 to September 30, 2007; and had been overpaid $2,268 for the period from October 1, 2007 to November 30, 2007. Adding these amounts together yields a total debt amount of $14717 (i.e. $1,099+$2,268+$11350= $14717). The above summarized evidence indicates that the $14,717 overpayment was properly created. The Veteran did not initially report his income from SSA benefits. Thus, when the RO later discovered the presence of this income, it properly proceeded to reduce the Veteran's monthly pension payments retroactively and to assess the instant overpayment. Also, the RO's accounting of the overpayment assessment reasonably establishes that the overpayment was accurately calculated (and the Veteran has not disputed the RO's calculations). In addition, sole administrative error is not present in this case as the Veteran's actions (in not properly reporting his income) contributed to payment of the erroneous award. 38 U.S.C. 5112 (b)(9), (10); 38 C.F.R. § 3.500 (b)(2); Jordan v. Brown, 10 Vet. App. 171 (1997). Accordingly, the Veteran's $14,717 debt is valid. See 38 U.S.C. § 5302; 38 C.F.R. § 1.962. B. Waiver 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. § 5302 (a); 38 C.F.R. § 1.963 (b). 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). In this case, the date of the RO's notification of indebtedness to the Veteran is December 21, 2017. The notification also included an enclosed explanation of his appeal rights, including the right to request a waiver and the time limit for making such a request. The Veteran subsequently requested a waiver in a communication dated July 9, 2008 and received on July 17, 2008. Thus, the Veteran's request for waiver was not made within 180 days from the date of notification of the indebtedness. It appears the Veteran has asserted that due to some error by VA or the postal authorities or other circumstances beyond his control, there was a delay in his receipt of the notice of indebtedness beyond the time customarily required for mailing (including forwarding). However, the evidence of record does not support such an assertion. Notably, the December 21, 2017 notification was sent to the Veteran's current address of record at that time and was not returned as undeliverable. Also, the Veteran did not notify VA of any change of address during this time frame. Additionally, there is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption to attach). A statement of non-receipt, standing alone is not the type of clear evidence to the contrary that is sufficient to rebut the presumption of regularity of notice. Id. The Board therefore finds that the Veteran was properly notified of the overpayment as the presumption of regularity has not been rebutted. Moreover, other circumstances beyond the Veteran's control, which would have delayed his receipt of the notice, have not been shown. Absent the showing of VA or postal error, or other circumstances beyond the Veteran's control, the Board has no authority to disregard the time limit for filing a request for waiver. Thus, the Board must deny the request for a waiver of recovery of the overpayment in the amount of $14,717.00 based on the untimely waiver request. ORDER The debt in the amount of $14,717.00 for overpayment of VA monetary benefits is valid. Waiver of recovery of an overpayment of VA monetary benefits in the amount of $14,717.00 is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs