Citation Nr: 18153127 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 15-12 760 DATE: November 27, 2018 ORDER The overpayment of Department of Veterans Affairs (VA) disability compensation benefits in the amount of $4,176.00 resulting from the Veteran’s incarceration in excess of 60 days for conviction of a felony was properly created and the appeal is denied. FINDINGS OF FACT 1. On August 8, 2001, the Veteran was incarcerated following conviction of a felony. 2. Information obtained by the Regional Office (RO) in August 2002 revealed that the Veteran was incarcerated; the Veteran first notified VA that he was incarcerated and provided an updated address in August 2005. 3. The Veteran was paid more compensation benefits than he was entitled to for October and November 2001. CONCLUSION OF LAW The overpayment of VA compensation benefits in the amount of $4,176.00 was properly created. 38 U.S.C. § 5313; 38 C.F.R. § 3.665. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1964 to December 1967 under honorable conditions. Initially, the Board notes that the Veteran requested a hearing before a Decision Review Officer (DRO) at the RO in his May 2010 notice of disagreement, but was subsequently afforded an opportunity to attend a hearing before the Board, which he declined. See Bowen v. Shinseki, 25 Vet. App. 250, 253-54 (2012) (holding that there is no due process violation when VA denies claimant a hearing before the RO in error, but claimant maintains the ability to appeal and obtain a de novo hearing before the Board). The Board finds the Veteran is not prejudiced in this instance for not receiving the DRO hearing. Further, the Veteran also requested waiver of his overpayment debt in the May 2010 notice of disagreement and submitted a VA Form 5655, financial status report. See 38 C.F.R. § 1.963(b)(2). The claim was referred to the Committee on Waivers and Compromises (COWC) in June 2010, which returned the issue to the St. Paul Pension Center for adjudication in July 2010, noting that the claim was under their jurisdiction. To date, there is no indication that the issue has been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board finds the issues of entitlement to waiver of the overpayment debts of VA compensation benefits in the amount of $4,176.00 must be referred to the AOJ for appropriate action. The Veteran’s overpayment debt is due to incarceration in excess of 60 days for conviction of a felony from October 2001 to November 2001. 38 U.S.C. § 5313; 38 C.F.R. § 3.665 (any person serving a period of incarceration for conviction of a felony for a period in excess of 60 days shall not be paid VA compensation in excess of 10 percent for service-connected disabilities rated at 20 percent or more for the period beginning on the 61st day of such incarceration). The Veteran disagreed with a May 2010 Debt Management Center (DMC first demand letter assessing an overpayment debt in the amount of $4,176.00 based on the retroactive reduction of his compensation benefits due to his incarceration. However, the Board finds the evidence of record supports a finding that the creation of the overpayment debt was proper. The Veteran does not dispute that his disability compensation benefits were properly reduced after 60 days of incarceration. However, he maintains that he did not receive any compensation benefits since August 2001 and indicated that any overpayment debt was therefore moot. He explained in his notice of disagreement that his trial attorney was collecting his benefit checks while he was incarcerated and indicated that the trial attorney must have kept his compensation award for August 2001 and September 2001. Historically, the RO determined in August 2002 that Social Security Administration (SSA) benefits were under a prisoner suspension since August 2001. In a September 2002 letter that was returned as undeliverable, VA notified the Veteran that a benefit check for June 2001 (prior to the period in question) was not cashed and was now void. Subsequently, a September 2002 VA Form 21-8947 indicated the Veteran’s compensation award was suspended, effective December 1, 2001, for whereabouts unknown. The first notification by the Veteran of his incarceration was received in August 2005, more than 61 days after confinement began. Based on an additional December 2009 notice to VA of the Veteran’s incarceration and request for retroactive payments, VA notified the Veteran in May 2010 that his compensation benefits were reinstated as adjusted for his incarceration and the overpayment debt was discovered for October 2001 and November 2001. Initially, the Veteran has essentially asserted that there was VA error in the creation of the debt. However, the Board notes that any finding of sole administrative error on part of VA may not be found if the veteran’s actions or failure to act contributed to the erroneous award. 38 U.S.C. § 5112(b); 38 C.F.R. § 3.500(b)(1); Jordan v. Brown, 10 Vet. App. 171 (1997). As the Veteran did not inform VA of his incarceration in a timely manner, he was partially at fault for the creation of the debt and sole administrative error may not be applied to this case. Moreover, although the Veteran asserted that he did not receive any compensation benefits since August 2001 such that no overpayment debt was valid thereafter, he did acknowledge that his trial attorney may have received some of his compensation benefit checks on his behalf based on their agreement. The Board notes that the issue of whether a third party retained any of the Veteran’s compensation benefits is not within the scope of this appeal; once VA properly disbursed his payments, those payments were out of VA control. Moreover, the evidence of record indicates compensation award benefit checks were mailed to the Veteran through December 1, 2001. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (the presumption of regularity provides that, in absence of clear evidence to the contrary, it is presumed that public officers have properly discharged their official duties). Based on the above, the Board finds the Veteran’s statements alone do not constitute clear evidence to rebut the presumption of regularity nor does any other evidence of record. Moreover, although VA notified the Veteran of an uncashed benefit check for the month of June 2001, there is no other evidence of record to support a finding that the Veteran’s monthly compensation benefits were not received for October 2001 and November 2001. Therefore, the evidence does not support a finding that the overpayment debt was not validly created on the basis of the funds not being received. (Continued on the next page) As the Veteran received higher compensation benefits payments to which he was not entitled, the Board concludes the overpayment was properly created. The appeal is denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Odya-Weis, Counsel