Citation Nr: 18156232 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 14-99 809A DATE: December 7, 2018 ORDER The overpayment of Chapter 33 (Post-9/11 GI Bill) education benefits in the calculated amounts of $2,754.81 for housing allowance, $3,064.35 for tuition and fees, and $246.51 for books and supplies, was properly created. REMANDED Entitlement to waiver of recovery of overpayment of Chapter 33 (Post-9/11 GI Bill) education benefits in the calculated amounts of $2,754.81 for housing allowance, $3,064.35 for tuition and fees, and $246.51 for books and supplies is remanded. FINDINGS OF FACT 1. The overpayment was created because the Veteran received Chapter 33 (Post-9/11 GI Bill) education benefits to which he was not entitled according to the certification of enrollment. 2. The record reflects the amount of the Chapter 33 overpayment was properly calculated in the amounts of $2,754.81 for housing allowance, $3,064.35 for tuition and fees, and $246.51 for books and supplies. CONCLUSION OF LAW The overpayment of Chapter 33 (Post-9/11 GI Bill) education benefits in the calculated amounts of $2,754.81 for housing allowance, $3,064.35 for tuition and fees, and $246.51 for books and supplies, was properly created. 38 U.S.C. §§ 5112, 5302, 5314; 38 C.F.R. §§ 1.911, 1.956, 1.962, 21.9635, 21.4270, 21.9695, 21.9720. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from January 2010 to September 2012. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 determination of a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied a waiver of recovery of the overpayment in this case. In May 2018, the Board remanded the appeal for further development, to include consideration of whether the debt was properly created. The record reflects that issue was addressed in a June 2018 Supplemental Statement of the Case (SSOC), and all other development directed by the Board appears to have been substantially completed. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The case has been returned to the Board for additional appellate consideration. The validity of the overpayment of Chapter 33 (Post-9/11 GI Bill) education benefits in the calculated amounts of $2,754.81 for housing allowance, $3,064.35 for tuition and fees, and $246.51 for books and supplies. The Board notes that the Veteran's basic eligibility for Chapter 33 (Post-9/11 GI Bill) education benefits is not in dispute. Rather, the dispute is whether he received an overpayment of such benefits, and, if so, whether he is entitled to a waiver of such overpayment. Payments of educational assistance (including Chapter 33 benefits) are based on pursuit of an approved program of education. 38 C.F.R. § 21.9590(a). "Program of education" means a curriculum or combination of courses pursued at an institution of higher learning that are accepted as necessary to meet the requirements for a predetermined and identified educational, professional, or vocational objective. The curriculum or combination of courses pursued must be listed in the institution of higher learning's catalog and included in the approval notice provided by the State approving agency to VA. 38 U.S.C. §§ 3034, 3301, 3323, 3452; 38 C.F.R. § 21.9505. "Institution of higher learning" means a college, university, or similar institution, including a technical or business school, offering postsecondary level academic instruction that leads to an associate or higher degree if the school is empowered by the appropriate State education authority under State law to grant an associate or higher degree. 38 C.F.R. § 21.9505. 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 pension, compensation, dependency and indemnity compensation (DIC), educational assistance benefits and subsistence allowance, insurance benefits, burial and plot allowances, clothing allowance, and automobile or other conveyance and adaptive equipment allowances. 38 C.F.R. § 1.956(a). VA generally is required to recover erroneous VA payments or overpayment of benefits. See Edwards v. Peake, 22 Vet. App. 57, 59 (2008); 38 U.S.C. § 5314(a) (generally requiring VA to deduct from future benefit payments a debt arising from a person's participation in a VA benefits program); 38 C.F.R. § 1.912a(a) (same); 38 U.S.C. § 5316 (authorizing VA to recover a benefit(s) related debt by bringing a suit if the person fails to appropriately respond to reasonable administrative efforts to collect the debt). That is, whenever the Secretary finds that an overpayment has been made to a veteran or eligible person, the amount of such overpayment shall constitute a liability of such veteran or eligible person to the United States. 38 U.S.C. § 3685; Mountford v. Shinseki, 24 Vet. App. 443, 450, n.6 (2011). The preliminary issue of the validity of a debt is a threshold determination that must be made prior to a decision on a request for waiver of the indebtedness. See Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991). In other words, before deciding a request for waiver, VA must first consider the validity of the debt. See also 38 U.S.C. § 5314(b) (prohibiting offset of a debt from future benefit payments unless VA first makes a determination with respect to the beneficiary's dispute of existence or amount of debt). A debtor may dispute the amount or existence of a debt, which is a right that may be exercised separately from a request for waiver or at the same time. See 38 C.F.R. § 1.911(c)(1); see also VAOPGCPREC 6-98. The propriety and amount of the overpayment at issue are matters that are integral to a waiver determination. See Schaper, 1 Vet. App. at 434. For a determination that the overpayment was not properly created, such that the debt was not valid, it must be established that the appellant was either legally entitled to the benefits in question or, if the appellant was not legally entitled, then it must be shown that VA was solely responsible for the appellant 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 his or 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) (sole administrative error is not present if the payee knew, or should have known, that the payments were erroneous). Thus, 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. Specific to VA educational assistance, an overpayment of educational assistance paid to an eligible individual under 38 U.S.C. Chapter 33 constitutes a liability of that individual, unless: (1) the overpayment was waived as provided in 38 C.F.R. §§ 1.957 and 1.962; or (2) the overpayment results from an administrative error or an error in judgment. 38 C.F.R. § 21.9695(b) (cross-referencing 38 C.F.R. § 21.9635(r)). When an administrative error or error in judgment by VA is the sole cause of an erroneous award, the award will be reduced or terminated effective the date of last payment. 38 C.F.R. § 21.9635(r). But if fault for an overpayment cannot "clearly be ascribed to the beneficiary," VA's policy is to assume that fault and not create a debt against the beneficiary. Dent v. McDonald, 27 Vet. App. 362, 380 (2015) (citing VAOPGCPREC 2-90 (March 1990)). However, when both VA and the beneficiary are partially at fault, the debt based on the effective date of reduction or discontinuance of benefits is properly created. See Jordan v. Brown, 10 Vet. App. 171, 174 (1997). Pertinent to this case, the provisions of 38 C.F.R. § 21.9720(a) establish an institution of higher learning must certify an eligible individual's enrollment before he or she may receive educational assistance. That is, certification of enrollment is in the hands of the institution of higher learning, not VA. Here, the record reflects that for the December 2012 to December 2013 school term, VA paid $11,205 for tuition to the Texas Barber and Hairstyling School, $901.38 to the Veteran for books and supplies, and $2,178 to him for housing allowance. However, in October 2013 the Texas Barber and Hairstyling School informed VA that effective September 3, 2013 the Veteran’s attendance had fallen below the required 80 percent and therefore his status was changed to unsatisfactory. See also 38 C.F.R. § 21.4270. The Texas Barber and Hairstyling School indicated that they would not recertify the Veteran’s attendance to the VA until the Veteran’s attendance met the 80 percent required. As a result, the RO concluded the Veteran was overpaid in the amounts of $2,754.81 for housing allowance, $3,064.35 for tuition and fees, and $246.51 for books and supplies. The Veteran has contended that the creation of the overpayment was invalid. He also provided evidence that he in fact continued to attend Texas Barber and Hairstyling School from September 2013 to April 2014. In addition, he submitted a transcript noting that he successfully graduated from the program despite having an attendance rate of 73.10 percent, below the 80 percent required to be satisfactory. Despite the foregoing, the Board's actions are bound by the applicable law and regulations as written. VA has no power to grant benefits not authorized by law. 38 U.S.C. § 7104(c). In pertinent part, the provisions of 38 C.F.R. § 21.9720(a) mandate that the pertinent institution of higher learning must certify an eligible individual's enrollment before he or she may receive educational assistance. As already noted, the record reflects the Texas Barber and Hairstyling School informed VA in October 2013 that they could not certify the Veteran for the complete December 2012 to December 2013 period, resulting in the creation of the overpayment in this case. Although that institution later certified the Veteran for a subsequent enrollment period, and he did ultimately graduate from that institution, nothing in the record changes the lack of certification for the complete December 2012 to December 2013 period. In view of the foregoing, the Board must find that the RO correctly determined that VA overpaid Chapter 33 benefits toward the Veteran’s participation in the Texas Barber and Hairstyling School due to that institution’s decision not to certify the Veteran for the complete December 2012 to December 2013 period. Moreover, the record does not reflect there was error in calculated in the amounts of overpayment of $2,754.81 for housing allowance, $3,064.35 for tuition and fees, and $246.51 for books and supplies. In view of the forgoing, the Board finds no error was committed by VA, as it took proper action in light of the Texas Barber and Hairstyle School’s decision not to certify the Veteran for the complete December 2012 to December 2013 period. Further, in light of these actions the Veteran received Chapter 33 education benefits for this period to which he was not entitled. Consequently, the Board must conclude that the debt/overpayment in this case was properly created. Therefore, this aspect of the appeal must be denied. REASONS FOR REMAND Entitlement to waiver of recovery of overpayment of Chapter 33 (Post-9/11 GI Bill) education benefits in the calculated amounts of $2,754.81 for housing allowance, $3,064.35 for tuition and fees, and $246.51 for books and supplies is remanded. In this case, the Veteran had previously indicated that collection of the overpayment would result in financial hardship. Although the June 2018 SSOC noted the debt had been repaid, it is not clear from the other evidence of record whether this is actually the case. Moreover, it does not appear from the record available for the Board’s review that updated financial information has been obtained regarding the Veteran since 2014. Accordingly, a remand is required in this case to obtain such information. This matter is REMANDED for the following action: 1. Clarify whether the debt in question has been repaid. 2. Request the Veteran to submit updated Financial Status Report(s) covering the period from 2014 to the present. 3. After completing any additional development deemed necessary, readjudicate the matter of whether a waiver of overpayment is warranted in this case in accord with the principles of equity and good conscience. If any portion of benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel