Citation Nr: 18141186 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 15-07 382 DATE: October 9, 2018 ORDER The overpayment of Veterans Retraining Assistance Program (VRAP) benefits in the amount of $5,629.07 was properly created. REMANDED The issue of entitlement to a waiver of the overpayment of VRAP benefits in the amount of $5,629.07 is remanded. FINDING OF FACT The Veteran was not enrolled as a full-time student from August 19, 2013 to December 14, 2013. CONCLUSION OF LAW The debt created by the overpayment of VRAP benefits in the amount of $5,629.07 is valid. 38 U.S.C. § 5112 (2012); 38 C.F.R. §§ 1.911, 3.500 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1975 to February 1979. At the outset, the Board acknowledges that the adjudication of the claim to this point has focused upon the validity of the debt in question. However, a review of the Veteran’s multiple statements of record, to include his testimony before the undersigned in February 2016, show that he has also disputed whether the overpayment should be repaid. Therefore, the Board has construed the issue of waiver of recovery of the overpayment as being part of the appeal. For VA purposes, 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. An overpayment may arise from virtually any benefits program administered pursuant to VA law, including educational assistance benefits. 38 C.F.R. § 1.956 (a). VA regulations provide that, when an indebtedness is assessed, the debtor has the right to: informally dispute the existence or amount of the debt, appeal the VA decision underlying the debt, and request waiver of collection of the debt. 38 C.F.R. § 1.911 (c). These rights can be exercised separately or simultaneously. See Schaper v. Derwinski, 1 Vet. App. 430, 434 (1991). The VRAP was a component of the VOW to Hire Heroes Act of 2011, passed by Congress, and signed into law by President Obama. In pertinent part, under VRAP, an eligible veteran was entitled to up to 12 months of retraining assistance provided by the VA to pursue a program of education for training, on a full-time basis, offered by a community college or a technical school designed to provide training for a high-demand occupation. 38 C.F.R. § 21.4270. In order to maintain the benefit, each participating veteran was required to certify to the VA enrollment in a requisite program for each month he received the benefit. See VOW to Hire Heroes Act of 2011, Pub. L. No. 112-56, 125 Stat. 711 (November 21, 2011). The authority of the VA to pay such benefits concluded, by law, on March 31, 2014. A “program of education” is any curriculum or any combination of unit courses or subjects pursued at an educational institution which is generally accepted as necessary to fulfill requirements for the attainment of a predetermined and identified educational, professional, or vocational objective. Such term includes any curriculum of unit courses or subjects pursued at an educational institution which fulfill requirements for the attainment of more than one predetermined and identified educational, professional, or vocational objective if all the objectives pursued are generally recognized as being reasonably related to a single career field. 38 U.S.C. § 3452 (b). Important here, participants must have attended full-time in order to receive up to 12 months of assistance equal to the monthly full-time payment rate under the Montgomery GI Bill-Active Duty program. Participants did not receive benefits for any time period during which their training dropped below full-time. Participants must have been enrolled in a VA approved program of education offered by a community college or technical school. The program must lead to an associate degree, non-college degree, or a certificate, and train the participant for a high-demand occupation. VRAP § 211(b). In August 2013, the Veteran was informed that he was eligible under VRAP for benefits to attend Ivy Tech Community College for the term beginning on August 19, 2013. The Veteran enrolled full-time for the semester, which was set to end on December 14, 2013, and began the semester with 12 credit hours. However, effective August 31, 2013, the Veteran’s enrollment was reduced to part-time with only 9 credit hours, thereby reducing the Veteran’s full-time status to part-time for the semester at issue. In February 2014 correspondence, VA notified the Veteran that his VRAP benefits had been terminated effective from August 31, 2013 because he was not attending school full-time. This termination resulted in an overpayment of benefits in the amount of $5,629.07. The Veteran maintains that he was enrolled by the school in classes that were not required for his major, or in classes that he had already taken, and that he never intended to voluntarily withdraw from full-time status. Thus, the Veteran maintains that his VRAP benefits should not have been terminated, as he had no intention of dropping to full-time status. In essence, the Veteran claims that the school made a mistake. Regardless of the school’s actions, the fact remains that the Veteran was not in a full-time status for the semester beginning in August 2013. Because the Veteran was not enrolled full-time during this period, basic eligibility for VRAP benefits was not met. At the Veteran’s hearing before the Board in February 2016, he testified that he dropped a computer drafting course and ultimately failed a math class, but that his benefits should not be taken away because he had no control over the multiple scheduling decisions and class recommendations made by the school. Again, the Board fully understands the Veteran’s frustration in this regard, but participation in the VRAP program requires “full-time” enrollment. Pursuant to 38 C.F.R. § 21.4270, full-time enrollment is no less than 14 clock hours and the agency of original jurisdiction determined that 12 clock hours was the minimum for full-time enrollment here. As the Veteran was only enrolled in 9 credit hours as of August 31, 2013, the requirement for full-time enrollment for the semester is not met, even if this determination was made in error by the school. The Board is without authority to mediate any dispute between the Veteran and his school. Therefore, the Board must find that the debt is valid. REASONS FOR REMAND The Board notes that the adjudication of this case below, to include the December 2014 Statement of the Case, focused upon the validity of the debt; i.e., whether the overpayment was properly created. However, as indicated above, the Board has found that the Veteran’s contentions also go to whether a waiver of recovery of that overpayment is warranted in this case. The elements for determining whether a waiver is warranted is different from the validity of the debt, and includes the legal principles of equity and good conscience found at 38 C.F.R. § 1.965. Inasmuch as it does not appear this matter was adequately addressed below, a remand is required to provide the Veteran with adequate notification as to the elements necessary for such a waiver and the opportunity to present such evidence. Finally, the Board recognizes that it appears that the full amount of the overpayment has already been recouped by VA. However, any recoupment of a debt does not reduce the overpayment for purposes of addressing the issue of waiver; the entire original amount of the overpayment must be considered and, if a waiver is granted, any amount recouped is to be returned to the claimant. See 38 C.F.R. § 1.967 (a); see also Franklin v. Brown, 5 Vet. App. 190 (1993). The matter is REMANDED for the following action: Provide the Veteran with notification as to the elements necessary for a waiver of recovery of overpayment, to include the relevant legal principles of equity and good conscience, and adjudicate his claim as appropriate. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, Counsel