Citation Nr: 1806172 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-11 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office (RO) in New York, New York THE ISSUE Entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) disability compensation benefits in the amount of $1,767, to include the issue of the validity of the debt. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1969 to March 1971 and from December 1974 to March 1984. This case is before the Board of Veterans' Appeals (Board) from a February 2012 decision by a Committee on Waivers and Compromises at the Philadelphia, Pennsylvania RO. In June 2014, the case was remanded to afford the Veteran a videoconference hearing before a Veterans Law Judge who would decide the matter, in response to an October 2017 Board letter requesting the Veteran to clarify his intentions regarding a hearing, he indicated later that month that he did not desire another hearing. The case is in the jurisdiction of the New York RO . FINDINGS OF FACT 1. In December 2011, following a rating decision in November 2011 that granted additional VA disability compensation, with payment starting July 1, 2010, the Veteran was paid $47,991 in retroactive disability compensation benefits; VA subsequently asserted that the Veteran was due $46,224, resulting in a $1,767 overpayment charged against him. 2. A February 2012 decision of the VA's Committee on Waivers denied the Veteran's request for waiver of recovery of the $1,767 debt; various ambiguous reasons were given by VA about how the overpayment was created until the explanation provided in a May 2012 supplemental statement of the case (SSOC) that attributed the debt to the Veteran having been paid additional benefits for a spouse during a time (December 1, 2004 to September 1, 2007) he was not married. 3. Evidence on file before and after the overpayment was assessed against the Veteran shows that the Veteran has been married to Barbara, without interruption, since 1972. CONCLUSION OF LAW The overpayment of VA disability compensation benefits assessed against the Veteran in the amount of $1,767 was improperly created, and the related debt assessed against the Veteran is not valid. 38 U.S.C.§ 5112(b) (2012); 38 C.F.R. § 3.500(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initial Matter The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C. §§ 5103 , 5103A, and implemented in part at 38 C.F.R § 3.159, does not apply in this case. Notwithstanding the requirements of the VCAA, the provisions of Chapter 53 of Title 38 of the United States Code govern claims for waiver of recovery of a debt owed to VA, and contain their own notice and duty to assist provisions. See Barger v. Principi, 16 Vet. App. 132 (2002) (the duties specified in the VCAA are not applicable to requests for a waiver of overpayment). Regardless, in light of the determination below, further discussion of VA's duties to notify and to assist is not necessary. Legal Criteria 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. § 5302; 38 C.F.R. § 1.962. An overpayment may arise from virtually any benefits program administered pursuant to VA law. 38 C.F.R. § 1.956(a). The validity of a debt is a threshold determination that must be made prior to consideration of a request for waiver of the indebtedness. See Schaper v. Derwinski, 1 Vet. App. 430 (1991); 38 U.S.C. § 5302, 38 C.F.R. § 1.911(c), VAOPGCPREC 6-98 (Apr. 24, 1998). To find that an overpayment was created properly, it must be established that the Veteran was not legally to the benefit in question, and also that VA was not solely responsible for the Veteran being paid benefits erroneously. 38 U.S.C. § 5112(b)(10); 38 C.F.R. §§ 3.500(b)(2), 21.7635(q)(2). Factual Background and Analysis The Veteran and his representative argue that the overpayment with which the Veteran has been charged was not his fault and improperly created, thus implying it was solely the fault of VA administrative error. After reviewing the record, the Board agrees. A November 2011 rating decision granted the Veteran additional VA disability compensation, including service connection for posttraumatic stress disorder (rated 100 percent ), effective June 15, 2010, and special monthly compensation SMC at the housebound rate (for one disability rated 100 percent and additional service-connected disabilities independently ratable at 60 percent or more), effective June 15, 2010 to July 1, 2010. A computer-generated VETSNET Compensation and Pension Award record dated in November 2011 shows that the net award entitlement was $46,224. On the same record, a chart showing compensation payments from December 1, 2004 (when the Veteran was initially entitled to compensation) to December 1, 2011 indicates that the Veteran's compensation award did not include a dependency allowance for a spouse from December 1, 2004 (when the Veteran's disability level was 40 percent) to September 1, 2007 (when his disability level increased to 90 percent and there was a "Change in Spouse Status" in addition to a compensation rating adjustment). A December 2011 RO letter informed that Veteran about the new award of compensation with a payment start date of July 1, 2010 (because payment begins the first day of the month following an effective date), and that the payment would include an additional benefit for his spouse, Barbara. The RO also noted that the Veteran's claim for pension benefits was denied because his income, effective July 1, 2010, exceeded the maximum annual disability pension limit set by law, and compensation was the greater benefit. Evidently, according to a December 2011 "SHARE payment history" record, the Veteran was paid $47,991 in retroactive benefits based on the November 2011 rating decision. In December 2011, the VA's Debt Management Center (DMC) in St. Paul, Minnesota sent the Veteran a letter, notifying him of an overpayment in his account in the amount of $1,767. In January 2012, he filed a request for waiver of recovery of the overpayment of compensation benefits. In February 2012, he submitted a financial status report on which he stated that he was still waiting for VA to account for the debt. In a February 2012 decision, the Philadelphia RO's Committee on Waivers and Compromises denied the waiver request, asserting that it was unable to consider the waiver request because it had not received a financial status report as of that date. In explaining how the overpayment was created, the Committee noted that the Veteran was recently granted SMC benefits, effective June 15, 2010 to July 1, 2010, but was not entitled to payment for this period because his "income exceeded the maximum annual disability pension limit set by law." In an April 2012 SOC, the RO affirmed the denial of the Veteran's waiver request, explaining that he was issued a retroactive payment of $47,991 when he should only have received $46,224. The RO stated that the debt was created "because information of record showed that [the Veteran's] compensation benefits were reinstated as the greater benefit because [his] countable income exceeded the allowable income limit for VA pension benefits." The RO found that although the Veteran was not at fault in the creation of the overpayment, collection of the debt would not be against equity and good conscience. A May 2012 SSOC supplied a different reason for the creation of the overpayment: A review of the award dated 11/29/2011, showed that the Veterans benefits were reduced, effective 12/01/2004 (removal of spouse from award) to 09/01/2007 (added spouse back onto award). The Veterans benefits were then reinstated, effective 07/01/10, because he is housebound. The 12/02/11 Notification letter advised the Veteran that he was not entitled to payment for the period of 06/15/10 to 07/01/10, but failed to inform him of the reduction of his benefits noted above. These actions resulted in retroactive benefits due in the amount of $46,224.00. However, the Veteran was issued a retroactive payment of $47,991.00. The reduction of his benefits from 12/04/2004 to 09/01/2007 caused the debt of $1,767." (Underlined portions appear in original.) The RO affirmed the prior denial of the waiver request. The RO still found that the Veteran was not at fault in the creation of the overpayment, but also determined that he was "not entitled to VA compensation benefits during the time that you were not married," among other factors considered to determine whether it would be against equity and good conscience to recover the overpayment. The Veteran responded to the SSOC in June 2012, asserting that he has been married every year that he received compensation. He submitted a copy of a marriage certificate, showing his marriage to Barbara in 1972, and a letter from his church pastor, attesting to their marriage since 1972. As outlined above, the Veteran was paid $47,991 in retroactive compensation benefits in December 2011, when the RO asserts that instead he was due $46,224, thus resulting in a $1,767 overpayment. The explanations given for the creation of the overpayment by the RO's Committee on Waivers and by the RO in the SOC are confusing and unintelligible. Essentially, the Veteran disputes the creation of the debt, and the reason given by the RO in the SSOC presents the clearest understanding of how $1,767 was assessed against his account. In the RO's own words, the overpayment resulted from the removal of a spouse from his award in December 2004 to the addition of a spouse to his award beginning September 1, 2007, and he was not entitled to additional dependency benefits during such time as he was not married. From such explanation, it appears the Veteran was paid a dependency allowance for a period of nearly three years, when the RO believes he was not due such additional dependency benefits because he was not married during that time period. That finding is clearly incorrect. As shown by copies of a marriage certificate, which were received in June 2012 but were also previously of record - evidence of his marital status with Barbara having been submitted in June 1972, March 1985, November 2004, and January 2010 - the Veteran was married, and has stayed married, to Barbara since 1972. In short, the Veteran was in fact entitled to a dependency allowance for the period in question (December 2004 to September 2007), and thus he was legally entitled to the greater amount of retroactive compensation benefits which were paid to him in December 2011. The overpayment of $1,767 assessed against him is invalid, as it was due to VA error. The Board concludes that the Veteran's indebtedness to VA in amount of $1,767 was created improperly, cannot legally be charged to the Veteran. Erickson v. West, 13 Vet. App. 495 (2000). Accordingly, the debt is not owed by the Veteran. 38 U.S.C. § 5112(b); 38 C.F.R. § 3.500(b); Jordan v. Brown, 10 Vet. App. 171 (1997). Accordingly, there is no overpayment to be waived; the appeal is granted. ORDER As an overpayment of VA disability compensation in the amount of $1,767 was not properly created, it is not a valid debt assessed against the Veteran; his appeal challenging the debt is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs