Citation Nr: 18145126 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 14-38 088A DATE: October 30, 2018 ORDER The overpayment of Veterans Retraining Assistance Program (VRAP) benefits in the amount of $384.53 was properly created. FINDING OF FACT The overpayment of VRAP benefits in the amount of $384.53 was properly created when the Veteran’s credit hours were reduced from 12 to 3 for the semester ending in May 2014. CONCLUSION OF LAW The debt created by the overpayment of VRAP benefits in the amount of $384.53 is valid. 38 U.S.C. §§ 501, 3524, 4100, 5112 (2012); Pub. L. No. 112-56, 125 Stat. 713, § 211 (Nov. 21, 2011); 38 C.F.R. §§ 1.911, 21.4136, 21.4270, 21.4277, 21.7135 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from November 1993 to November 1997. He contests the validity of an overpayment of VRAP benefits which were paid in relation to his school attendance from January to May 2014. 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). Here, the Veteran has consistently challenged the validity of the debt without requesting its waiver at any point. Therefore, the Board will only address whether or not the debt was validly created. As explained below, it finds that the debt was validly created. In December 2013, the Veteran was awarded benefits payable under the VRAP for the enrollment in a qualifying training program at Mount San Jacinto College. Those benefits were to be used for the semester beginning in January 2014 and ending in May 2014. The VRAP was a component of the VOW to Hire Heroes Act of 2011, passed by Congress, and signed into law by President Obama. VRAP offered up to 12 months of training assistance to unemployed veterans. Participants were able to pursue an approved program of education offered by a community college or technical school that lead to an associate degree or a certificate (or other similar evidence of the completion of the program of education or training) and was designed to provide training for a high-demand occupation. The program was limited to 45,000 participants from July 1, 2012 through September 30, 2012, and to 54,000 participants from October 1, 2012, through March 31, 2014. Participants were able to receive up to 12 months of assistance equal to the monthly full-time payment rate under the Montgomery GI Bill-Active Duty program. The December 2013 letter informed the Veteran that he had to keep VA informed of any changes in his enrollment and, important here, that he was responsible for all debts resulting from any change in that enrollment. In January 2014, VA was informed by Mount San Jacinto College that the Veteran’s credit hours had been reduced from 12 to 9, effective January 29, 2014. In May 2014, VA received further information from the school that the Veteran’s enrollment had dropped to 3 credit hours for the semester which ended in May 2014. Because the Veteran had asserted throughout his appeal that he enrolled in 14 credit hours and maintained that level of credits throughout the semester—thus rendering the overpayment invalid—VA reached out once again to the school in September 2014. At that time, the school verified for a third time that the Veteran was initially enrolled in 12 hours, which were reduced to 9 hours in January 2014, and then to 3 hours, in April 2014. The school official confirmed that the Veteran completed a total of 3 credit hours for the semester. Applicable regulations provide that VA will not pay education benefits for a course from which the veteran withdraws or receives a nonpunitive grade, unless the veteran withdraws because he or she is ordered to active duty; or mitigating circumstances are demonstrated. See 38 C.F.R. §§ 21.4135, 21.4136, 21.7135 (2017). No such mitigating circumstances are shown by the evidence. Based on the Veteran’s reduction in hours, he was no longer considered a full-time student, and an overpayment of $384.53 was created. In a September 2018 informal hearing presentation, the Veteran’s representative asked that the case be remanded to the agency of original jurisdiction (AOJ) for further development. First, the representative contended that the evidence contains an indication that the Veteran’s appeal was noted as “solved” on February 24, 2014 and, thus, should be considered closed. In the alternative, he requested that the case be remanded to the AOJ so that the Veteran’s college transcripts could be obtained in order to show which classes the Veteran was enrolled in during the semester at issue. As for the first contention, the Board finds it is the result of a misreading of the record and is without merit. The record shows that the document referenced by the Veteran’s representative is, in fact, a printout of a website detailing the titles and dates of the Veteran’s various online communications with VA. A February 24, 2014 message from the Veteran to VA was entitled “VRAP appeal” and was shown to have been “solved” on that date. However, “solved” in this context merely means that the communication had been answered by VA staff and does not in any way indicate that the Veteran’s appeal was resolved at that time. As for the representative’s contention that the Veteran’s school transcripts would be of use in the appeal, the Board finds that a remand to the AOJ to obtain such information would only result in unnecessary delay with no benefit to the Veteran. Mount San Jacinto College is the custodian of the Veteran’s academic records and they have confirmed on no less than three occasions that, based on those records, there was a reduction in the Veteran’s credit hours. The evidence does not provide any reason to doubt the validity of the school’s repeated certification. Thus, the Board finds that a remand for school transcripts is unnecessary. The record shows that the Veteran’s hours of enrollment at Mount San Jacinto College were reduced during the semester beginning in January and ending in May 2014. Ultimately, the Veteran finished the semester having completed 3 credit hours. The evidence further establishes that, despite this fact, the Veteran was paid education benefits based on 12 hours of enrollment for the semester. Thus, he was paid under VRAP for classes he did not attend. As the Veteran was not entitled to these benefits, his appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994), Gilbert v. Derwinski, 1 Vet. App. 49 (1990). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, Counsel