Citation Nr: 18159074 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 15-24 080 DATE: December 18, 2018 ORDER The request for waiver of an overpayment debt related to education benefits in the amount of $3,359.14 is denied. FINDINGS OF FACT 1. An April 10, 2014 letter sent to the appellant at his address of record advised him of his overpayment debt related to education benefits in the amount of $3,359.14 and of his right to request a waiver of this debt. The letter was not returned to sender. 2. The appellant’s request for a waiver of his overpayment debt was received on December 11, 2014, which was more than 180 days after the April 10, 2014 letter. 3. The appellant has not demonstrated that as a result of an error by either VA or the postal authorities, or due to other circumstances beyond his control, there was a delay in receipt of notification of indebtedness beyond the time customarily required for mailing (including forwarding). CONCLUSION OF LAW A timely request for waiver of an overpayment debt related to education benefits in the amount of $3,359.14 was not filed. 38 U.S.C. § 5302 (a) (2012); 38 C.F.R. § 1.963 (b) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1968 to January 1970. The appellant is his son. He contends that he was unable to timely mail a request for a waiver of an overpayment debt related to education benefits, in the amount of $3,359.14. The threshold question in any claim concerning a request for a waiver of overpayment is whether the waiver request was timely filed. Under the applicable criteria, a request for waiver of an indebtedness shall only be considered if it is made within 180 days following the date of a notice of indebtedness that is issued by VA to the debtor. See 38 U.S.C. § 5302 (a) (2012); 38 C.F.R. § 1.963 (b) (2017). The 180-day period may be extended if the individual requesting waiver demonstrates that, as a result of an error by either VA or the postal authorities, or due to other circumstances beyond the debtor’s control, there was a delay in such individual’s receipt of the notification of indebtedness beyond the time customarily required for mailing (including forwarding). 38 C.F.R. § 1.963 (b)(2) (2017). After review of the record, the Board concludes that a waiver request was not filed within 180 days of the date of notice of indebtedness. In this case, the appellant’s request for a waiver of his overpayment debt was received on December 11, 2014, which was more than 180 days after the April 10, 2014 letter that advised him of his indebtedness. As such, the Board concludes that a request for waiver was not filed within 180 days of the date of notice of indebtedness. As noted above, the 180-day period may be extended if the individual requesting waiver demonstrates that, as a result of an error by either VA or the postal authorities, or due to other circumstances beyond the debtor’s control, there was a delay in such individual’s receipt of the notification of indebtedness beyond the time customarily required for mailing (including forwarding). In this regard, the appellant has alleged that he did not receive his mail on time. In his February 2015 Notice of Disagreement (NOD), the appellant stated that he did not receive his mail because of a combination of the following factors: he was in jail and on probation while he was in school; that he was in a “deep depression because of” Superstorm Sandy; and that his parents were divorced. Addressing whether the appellant has demonstrated that there was a delay in receipt of notification of indebtedness beyond the time customarily required for mailing (including forwarding) as a result of error by VA or the postal authorities, the Board concludes that such has not been demonstrated. Under the presumption of regularity, “it is presumed that government officials ‘have properly discharged their official duties.’” See Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S. Ct. 1, 6, 71 L. Ed. 131 (1926)). Clear evidence to the contrary is required to rebut the presumption of regularity. Id. The April 2010 letter was addressed to the appellant. There is no indication in the record that such document was returned as undeliverable. As such, the Board accordingly must presume that VA sent the appellant the April 10, 2014 letter, which advised him of his overpayment debt and of his right to request a waiver of this debt. Although the Board finds no reason to question the sincerity of the appellant’s contention that he did not receive this letter in a timely manner, the Board finds no clear evidence to the contrary of record sufficient to rebut the presumption of regularity that supports that such letter was sent to the appellant. In this regard, his statements of non-receipt, or delayed receipt, by themselves do not constitute clear evidence to the contrary to rebut the presumption of regularity. See Schoolman v. West, 12 Vet. App. 307, 310 (1999) (“appellant’s statement of nonreceipt does not by itself constitute the type of clear evidence needed to rebut the presumption of regularity that the notice was sent”). The Board has found that VA sent the appellant the April 2014 letter, which advised him of his overpayment debt and of his right to request a waiver of this debt. This letter was addressed to the appellant at an address in New York which has remained unchanged throughout the appeal. No subsequent correspondence sent to the appellant at that address has ever been returned as undelivered, and mail to that address has consistently prompted a response from the appellant. Thus, the April 2010 letter is presumed to have been delivered to the appellant’s address in New York. In addition, in his February 2015 NOD, the appellant himself acknowledged that he sent the December 2014 request two months past the date on which it was due. As such, the Board concludes that the appellant has not demonstrated, as he is required to do under 38 U.S.C. § 5302 (a) and 38 C.F.R. § 1.963 (b) that as a result of error by VA or the postal authorities there was a delay in receipt of notification of indebtedness beyond the time customarily required for mailing (including forwarding). With respect to whether the appellant has demonstrated circumstances beyond his control as preventing him from filing a timely request for waiver, the Board concludes that such has not been demonstrated. Initially, the appellant indicated, without further detail, that his parents’ divorce meant he did not receive his mail. However, to the extent that the appellant alleged that this prevented him from receiving his mail in a timely manner and prevented him from responding within 180 days, as noted supra, an allegation of nonreceipt does not by itself constitute the type of clear evidence needed to rebut the presumption of regularity that a notice was sent. Thus, this contention has no merit. Further, the appellant asserted that he was in jail and on probation while in school, and was depressed due to Superstorm Sandy. The record shows that the appellant was enrolled in school from September 2012 to December 2013 and that the overpayment at issue stems from the Fall 2013 school semester. In addition, the Board notes that Superstorm Sandy occurred in October 2012. It is not clear how events which occurred prior to the mailing of the April 2014 notification letter affected the appellant’s receipt of same. It appears that, by raising these contentions, the appellant is disputing the validity of the debt. However, as noted above, the threshold question in any claim concerning a request for a waiver of overpayment is whether the waiver request was timely filed. Here, the Board has concluded that such a request was not timely filed. Therefore, the appellant’s arguments related to the validity of the debt are not for consideration in this case. In review, the Board finds that an April 10, 2010 letter sent to the appellant advised him of his overpayment debt related to education benefits and of his right to request a waiver of this debt. The appellant’s request for a waiver of his overpayment debt was received on December 11, 2014, which was more than 180 days after the April 10, 2014 letter. Further, the Board finds that extension of the 180-day period is not warranted because the appellant has not demonstrated that as a result of an error by either VA or the postal authorities, or due to other circumstances beyond his control, there was a delay in receipt of notification of indebtedness beyond the time customarily required for mailing (including forwarding). The Board concludes that a timely request for waiver of an overpayment debt related to education benefits in the amount of $3,359.14 was not filed. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C. § 5302 (a) (2012) 38 C.F.R. § 1.963 (b) (2017); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, Counsel