Citation Nr: 1808593 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 04-16 705A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether an overpayment of VA educational assistance benefits in the amount of $23,756.00 was properly created. REPRESENTATION Appellant represented by: Donald C. Hill, Attorney ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from July 1988 to December 1998. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an August 2003 decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Education Center in Muskogee Oklahoma which found that the Veteran had received an overpayment of VA educational benefits in the amount of $23,756.00. The Veteran perfected an appeal as to the validity of the debt. In November 2009, the Board issued a decision finding that the overpayment of education benefits was properly created. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) which, in September 2011, issued a memorandum decision vacating the November 2009 Board decision and remanding the appeal. The Board remanded the appeal for further development in May 2012 and April 2014. In a January 2015, the Board issued a new decision finding that the overpayment of education benefits was properly created. In May 2017, the Court issued a memorandum decision which vacated the January 2015 Board decision and remanded the matter for readjudication. The appeal is once again before the Board. FINDINGS OF FACT 1. The Veteran was enrolled in a program of education at Ramon Magsaysay Technological University (RMTU) to achieve a diploma in Agricultural Technology. 2. For the period from November 2000 to June 2003, the Veteran received educational assistance benefits in the amount of $23,756.00 based on his enrollment at RMTU. 3. The evidence is in equipoise as to whether the Veteran maintained satisfactory attendance at RMTU; thus, the overpayment in the amount of $23,756.00, was not validly created. CONCLUSION OF LAW An overpayment debt in the amount of $23,756.00 is not valid. 38 U.S.C. §§ 5112, 5302 (2012); 38 C.F.R. §§ 1.962, 3.500, 21.7153(c) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The overpayment of $23,756.00 at issue was created based on VA's investigation of a fraud scheme at RMTU in which 60 Veterans, including the one that is the subject of this appeal, allegedly did not regularly attend classes, but instead received credit in return for buying supplies and other gifts for the school and for individual instructors. The investigation included VA Educational Compliance Surveys conducted in October 2002 and March 2003, a May 2003 educational compliance Field Investigation, and a February 2004 investigation by VA's Office of Inspector General (OIG). The Educational Compliance surveys found that RMTU did not maintain accurate, current, and complete records for VA beneficiaries, including enrollment records, progress records, and course grades. VA will approve and will authorize payment of educational assistance for an individual's enrollment in any course or subject which a State approving agency has approved and which forms a part of a program of education as defined by 38 C.F.R. § 21.7020(b)(23). 38 U.S.C. § 3002(3); 38 C.F.R. § 21.7120. A program of education, in pertinent part, is any unit course or subject or combination of courses or subjects, which is pursued at an educational institution. 38 C.F.R. § 21.7020 (b)(23). The Veteran was found eligible for Chapter 30 education benefits and was entitled to a monthly benefit for the period of time he was enrolled in and satisfactorily pursing an approved program of education. 38 U.S.C. § 3014; 38 C.F.R. § 21.7070. The term attendance means the presence of a veteran (i) in the class where the approved course is being taught in which he is enrolled, or (ii) at a training establishment, or (iii) any other place of instruction, training or study designated by the educational institution or training establishment where the veteran is enrolled and is pursuing a program of education. 38 C.F.R. § 20.7042 (b)(2). 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. Attendance is unsatisfactory if the individual does not attend according to the regularly prescribed standards of the educational institution in which he is enrolled. Id. An overpayment is created when a beneficiary receives benefit payments in excess of the amount due or the amount to which such beneficiary is entitled. 38 U.S.C. § 5302; 38 C.F.R. § 1.962. To establish improper creation of an overpayment, i.e., an invalid debt, the evidence must show that (1) the Veteran was legally entitled to the VA compensation benefits at issue; or, (2) the erroneous payment of excess benefits was due solely to VA administrative error or error in judgment. The Veteran has challenged the validity of the debt by claiming that he was legally entitled to the compensation benefits at issue as he attended the classes in a satisfactory manner. In a January 2015 decision the Board found that the overpayment of benefits was properly created because the Veteran was a participant in the fraudulent scheme perpetrated at RMTU. This finding was based on his address in Olongapo City, which investigators noted was a distance away from any RMTU campus, on discrepancies between the courses the Veteran was registered for according to certificates of registration and those reported in his summary of grades, and because credit hours on various Enrollment Certification forms did not match those reported on his transcript. In the May 2017 memorandum decision, the Court held that the Board provided an inadequate statement of reasons and bases for relying on the October 2002 Educational Compliance Survey Report, the February 2003 Educational Compliance Survey Report, and the February 2004 OIG investigation report to find that the Veteran did not attend classes. The Court noted that none of these reports mentioned the approval agreement which defined the minimum requirements of attendance, stating that the approval agreement between VA and the school only required one hour of classroom attendance a week or three hours of laboratory time. The Court highlighted other inadequacies in the February 2004 OIG report, and essentially found that the Board erred in relying on such evidence. Finally, the Court found that the Board provided an inadequate statement of reasons and bases for finding that the Veteran personally participated in the fraud based on the distance between his residence and the university. In light of the Court's January 2014 memorandum decision, which indicates that the Board erred in relying on an October 2002 Educational Compliance Survey Report, the February 2003 Educational Compliance Survey Report, and the February 2004 OIG investigation report, the Board finds that the evidence in this case falls short of demonstrating that the Veteran did not attend classes at RMTU in a satisfactory manner. The May 2003 VA field investigation report included a deposition of this Veteran in which he stated that during the semester from October 2002 to March 2003, he attended regular classes with non-veteran students, and the Board finds that the distance from the Veteran's residence to RTMU is not evidence showing that he did not attend classes. While some discrepancies were noted between the Veteran's Enrollment Certification forms and his transcripts, given that the investigation detailed RMTU's widespread failure to maintain accurate records, discrepancies in various enrollment documents are insufficient to show that the Veteran did not attend class. Therefore, the Board finds that the evidence is in equipoise as to whether the Veteran maintained satisfactory attendance in accordance with 38 C.F.R. § 21.7153 (c) and, thus, finds that the overpayment debt was not validly created. See 38 U.S.C. § 5112 (b); 38 C.F.R. § 3.500 (b). ORDER The overpayment of educational benefits in the amount of $23,756.00 was not properly created and is invalid. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs