Citation Nr: 18156367 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 15-16 651 DATE: December 7, 2018 ORDER Entitlement to waiver of the recovery of an overpayment of Veterans’ Retraining Assistance Program (VRAP) benefits in the amount of $3,753.60, is granted. FINDINGS OF FACT 1. In a May 2013 letter, the Department of Veterans Affairs (VA) notified the Veteran that her VRAP benefits had been stopped on February 26, 2013, because her school reported that she reduced her training below full-time. The Veteran was notified that an overpayment of VRAP benefits in the amount of $3,753.60, was created, and she was informed that to disagree with the decision, she must submit an explanation in writing, explaining why he disagreed. 2. The Veteran reported that she never withdrew from, or was dropped from a class; that her monthly payments exceeded her income; that she received Section B housing, as well as food stamps; and that she had been unemployed since 2012, except for some babysitting on the side. 3. Resolving all doubt in the Veteran’s favor, collection of the debt would constitute an undue hardship on the Veteran. CONCLUSION OF LAW The criteria for waiver of the recovery of an overpayment of VRAP benefits in the amount of $3,753.60, have been met. 38 U.S.C. §§ 3001, 3301-3324, 3685, 5302 (West 2014); 38 C.F.R. §§ 1.911, 1.962, 1.963, 1.965, 1.966, 21.9635, 21.9635, 21.9695 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from January 1983 to June 1984. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a November 2013 RO decision by the Committee on Waivers and Compromises that denied the Veteran’s claim for entitlement to waiver of the recovery of an overpayment of VRAP benefits in the amount of $3,753.60. Waiver of the Recovery of an Overpayment of VRAP Benefits The VRAP was established by Pub. L. 112-56, Title II, § 211, 125 Stat. 713. VA will pay educational assistance for an eligible individual’s pursuit of an approved program of education. 38 C.F.R. § 21.7120. Educational assistance means the monetary benefit payable under 38 U.S.C. Chapter 33 to, or on behalf of, individuals who meet the eligibility requirements for pursuit of an approved program of education. 38 C.F.R. § 21.9505(7). In order to receive educational assistance for pursuit of program of education, an individual must maintain satisfactory attendance. 38 C.F.R. § 21.7153(c). VA will discontinue educational assistance if the individual does not maintain satisfactory attendance. Id. The amount of overpayment of educational assistance paid to a veteran constitutes a liability of that veteran. 38 C.F.R. § 21.7144(b). In making all determinations, the Board must fully consider the lay assertions of record. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Recovery of the overpayment of benefits shall be waived if there is no indication of fraud, misrepresentation, or bad faith on the part of the obligor, and if the recovery of the indebtedness from the payee who received such benefits would be against equity and good conscience. 38 U.S.C. § 5302; 38 C.F.R. §§ 1.962, 1.963(a). The standard of “equity and good conscience” will be applied when the facts and circumstances in a particular case indicate a need for reasonableness and moderation in the exercise of the Government’s rights, and requires a fair decision between the obligor and the Government that is not unduly favorable or adverse to either side. 38 C.F.R. § 1.965(a); Ridings v. Brown, 6 Vet. App. 544, 546 (1994). However, if there is an indication of fraud, misrepresentation, or bad faith in the creation of the overpayment, waiver of the overpayment is automatically precluded. See 38 U.S.C. § 5302(a); 38 C.F.R. §§ 1.962, 1.963, 1.965. In making this determination, consideration will be given to the following elements, which are not intended to be all-inclusive: fault of the debtor; balancing of faults between the debtor and VA; undue hardship of collection on the debtor; defeat of the purpose of an existing benefit to the appellant; unjust enrichment of the appellant; and whether the appellant changed positions to his or her detriment in reliance upon a granted VA benefit. 38 U.S.C. § 5302; 38 C.F.R. § 1.965(a). The Veteran’s request for a waiver of overpayment was timely filed and there is no indication of fraud, misrepresentation or bad faith which would preclude the granting of waiver. 38 U.S.C. §§ 5302(a), (c); 38 C.F.R. §§ 1.963(b), 1.965(b). The Veteran contends that she is entitled to a waiver of the recovery of an overpayment of VRAP benefits in the amount of $3,753.60. She specifically maintains that she never dropped a class and that her school did not drop her from a class. She maintains that she failed a class for various reasons, including the teacher changing the schedule of the class, and her lack of a driver’s license in order to attend the class, etc. The Veteran also indicates that her monthly payments exceed her income; that she receives Section B housing, as well as food stamps; and that she has been unemployed since 2012, except for some baby sitting on the side. In June 2012, the Veteran was awarded VRAP benefits. In a May 2013 letter, the VA notified the Veteran that her VRAP benefits had been stopped on February 26, 2013, because her school reported that she reduced her training below full-time. The Veteran was notified that an overpayment of VRAP benefits in the amount of $3,753.60, was created. She was informed that to disagree with the decision, she must submit an explanation in writing, explaining why she disagreed. An August 2013 Financial Status Report from the Veteran indicates that she last worked in February 2012. The Veteran reported that she had monthly expenses of $196.00, from utilities and heat, cable and internet, and car insurance, and that she had no monthly income. She maintained that she had cash on hand of $7.00 and total assets of $1,507.00. She indicated that she received Section B housing, which based her rent on her income. The Veteran stated that she also received food stamps and that she performed some babysitting on the side. A November 2013 RO decision of the Committee on Waiver and Compromises denied the Veteran’s claim for entitlement to a waiver of the recovery of an overpayment of VRAP benefits in the amount of $3,753.60. The decision indicated that the Veteran was receiving VRAP benefits for a term from January 2013 to May 2013, and that the VA received notification from her school in May 2013, that she reduced her training (ceased attending class) after the drop period in February 2013. The decision indicated that adjustments were made, which resulted in an overpayment in the amount of $3,753.60. The November 2013 RO decision of the Committee on Waiver and Compromises also indicated that a review of the Veteran’s Financial Status Report showed that her monthly expenses exceeded her income, but that many of her expenses were classified as consumer debt, not basic necessities. The decision found that collection of the debt would not be against equity and good conscience. The Board finds that a waiver of the overpayment at issue is warranted. Addressing the factors set forth in 38 C.F.R. § 1.965(a), the creation of the debt appears to have resulted from the Veteran’s failing of a class due to various reasons, including a changing class schedule and a lack of a driver’s license, etc. The fault for creation of the debt does not rest with VA, as it was the Veteran’s responsibility to notify VA of her cessation of attendance of the class in February 2013, and VA learned of said cessation from the school in May 2013. There is no indication that collection of the overpayment would defeat of the purpose of an existing benefit. There is also no indication that the Veteran detrimentally changed her position in reliance on the overpayment. As to whether the collection of the overpayment constitutes an undue hardship, the Veteran reported in August 2013 that she had monthly expenses of $196.00, from utilities and heat, cable and internet, and car insurance, and that she had no monthly income. She also stated that she had cash on hand of $7.00, that she had total assets of $1,507.00, that she received Section B housing and food stamps, and that she performed some babysitting on the side. The overpayment is small enough to avoid unjustly enriching the Veteran. Moreover, given the August 2013 Financial Status Report from the Veteran, any unjust enrichment concerns are outweighed by the undue hardship that the she would suffer as a consequence of repayment. Based on the evidence of record, and after weighing all of the equities involved, the Board finds that the recovery of an overpayment of VRAP benefits in   the amount of 3.753.60, would be against equity and good conscience. Thus, the Veteran’s request for waiver of recovery of the overpayment is granted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. D. Regan, Counsel