Citation Nr: 1806904 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 12-41 855A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether the Appellant's request for a waiver of indebtedness was timely. 2. Entitlement to a waiver of recovery of overpayment of VA compensation benefits in the amount of $15, 350.00. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 2002 to September 2009. He was killed in action in September 2009. The Appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2012 decision of the Department of Veterans Affairs (VA) Debt Management Center in St. Paul, Minnesota. Jurisdiction is currently with the VA Regional Office (RO) in Philadelphia, Pennsylvania. The Appellant testified before the undersigned Veterans' Law Judge at a November 2017 videoconference hearing at the Denver, Colorado, and a transcript of this hearing is of record. The issue of entitlement to a waiver of indebtedness of $15, 350.00 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Appellant submitted a request for a waiver of indebtedness to VA on January 30, 2012, which was within 180 days of receiving notification of the debt. CONCLUSION OF LAW The Appellant's request for a waiver of indebtedness was timely. 38 U.S.C. § 5302 (2012); 38 C.F.R. § 1.963 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION An overpayment is created when VA determines that an individual has received payments in excess of the amount due or to which he or she is entitled. 38 C.F.R. § 1.96. The debtor may challenge the validity or amount of the debt owed, and may apply for a waiver of a debt found to be valid. 38 C.F.R. §§ 1.911 (c), 1.963. In this case however, the threshold issue is whether the Appellant's request for waiver of indebtedness was filed in a timely manner. Generally, when the notice of indebtedness was issued on or after April 1, 1983, a request for waiver of indebtedness shall only be considered if made within 180 days following the date of the notice of indebtedness issued to the debtor by the VA. See 38 C.F.R. § 1.963. The Veteran in this case died in September 2009, and the Appellant, his surviving spouse, was awarded DIC benefits beginning in October 2009. In November 2010, the Appellant remarried. While there is some dispute as to when VA was notified of the Appellant's remarriage, it appears that the Appellant's compensation benefits were not adjusted until at least April 2011, creating an overpayment of $15,350.00. In a January 1, 2012 letter, the Appellant was notified of her indebtedness and instructed that she had 180 days to challenge this indebtedness or request a waiver. The earliest evidence of record that the Appellant was requesting a waiver is a statement from the Veteran received in July 2012, which is more than 180 days after she was notified of the creation of an overpayment. However, the Appellant has testified that she actually requested a waiver of indebtedness in January 2012, well within the statutory time limit, which she has alleged VA lost or misfiled. She reported that she submitted the appropriate paperwork to VA via fax with the assistance of a JAG attorney in Fort Carson and that they followed up this fax with a phone call to VA which confirmed receipt of the fax. In addition to the Appellant's own sworn testimony, she has submitted an August 2012 sworn statement from Captain B.M., who stated that on January 30, 2012, he successfully faxed the Appellant's written request for a waiver, as well as her Financial Status Report (VA 5655), to VA pursuant to instructions he received from a VA employee he talked to on the phone. Concerning the Appellant's assertion that she filed a waiver request with VA in January 2012, there is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). Therefore, it must be presumed that the Secretary properly discharged his official duties by properly handling claims submitted by the Appellant. However, the presumption of regularity may be rebutted by the submission of clear evidence to the contrary. Jones v. West, 12 Vet. App. 98 (1999), Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Ashley v. Brown, 2 Vet. App. 62, 64 (1992). Here, the Board finds that there is clear evidence that the Appellant faxed a waiver of indebtedness in January 2012 to VA which VA failed to properly process. Accordingly, the Board finds that the Appellant timely submitted a waiver of indebtedness to VA. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2017). The issue of whether the Appellant is entitled to a waiver of recovery of overpayment of VA compensation benefits in the amount of $15, 350.00 is addressed below in the Remand portion of this opinion. ORDER The Appellant's request for a waiver of indebtedness was timely. REMAND As the Board determined herein that the Appellant's request for a waiver of overpayment was timely filed, the merits of the waiver request must be remanded for adjudication by the AOJ in the first instance. Accordingly, the case is REMANDED for the following action: The matter should be referred for review of the merits of the waiver request in the calculated amount of $15, 350.00, to include whether the overpayment was validly created. If the claim remains denied, provide the Appellant with a SOC and an appropriate time period for response, after which the case is to be returned to the Board for further consideration if a timely substantive appeal is filed. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs