Citation Nr: 1809020 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 12-09 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Whether the Veteran's request for recovery of an overpayment of VA disability compensation benefits in the amount of $27,858.57 was timely filed. 2. Entitlement to a waiver of recovery of an overpayment of VA disability compensation benefits in the amount of $27,858.57. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to September 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 decision issued by the Department of Veterans Affairs (VA) Committee on Waivers and Compromises at the Debt Management Center in Fort Snelling, Minnesota. This case is currently under the jurisdiction of the VA Regional Office and Insurance Center in Philadelphia, Pennsylvania. When this case was before the Board in September 2014, it was remanded to afford the Veteran a hearing before the Board. In May 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The issue of waiver of recovery of an overpayment of VA disability benefits in the amount of $27,858.57 is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. In August 2006, the VA Debt Management Center (DMC) sent a notice of overpayment of VA disability benefits to an incorrect address and there is no indication the Veteran received it. 2. VA was notified of the Veteran's new address in October 2006 and failed to take corrective action by sending the notice of overpayment to the updated address. 3. As the Veteran is not shown to have received the August 2006 notice of indebtedness, his November 2011 request for a waiver is considered as having been timely filed. CONCLUSION OF LAW The Veteran's request for waiver of recovery of an overpayment of VA disability compensation benefits in the amount of $27,858.57 is considered timely. 38 U.S.C. § 5302(a) (2012); 38 C.F.R. § 1.963(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking a preliminary determination that his request for a waiver of overpayment of VA disability benefits was timely. Specifically, his representative argued in a March 2013 Informal Hearing Presentation that the August 2006 letter notifying the Veteran of the overpayment of benefits was sent to the wrong address. Generally, there shall be no recovery of payments or overpayments or any interest thereon of any benefits under any of the laws administered by the Secretary of VA whenever the Secretary determines that recovery would be against equity and good conscience, if an application for relief is made within 180 days from the date of notification of the indebtedness by the Secretary to the payee, or within such longer period as the Secretary determines is reasonable in a case in which the payee demonstrates to the satisfaction of the Secretary that such notification was not actually received by such payee within a reasonable period after such date. The secretary shall include in the notification to the payee a statement of the right of the payee to submit an application for a waiver under this subjection and a description of the procedures for submitting the application. 38 U.S.C. § 5302(a) (2012). A request for waiver of indebtedness must be received within 180 days following the date of a notice of indebtedness. The 180 day period may be extended if the individual requesting waiver demonstrates that as a result of the error, either by VA or postal authorities, or due to circumstances beyond the debtor's control, that there was a delay in such individual's receipt of the notification of indebtedness beyond the time customarily required for mailing. If a delay in the receipt of the notice of indebtedness is substantiated, the 180 day period will be computed from the date of actual receipt of the notice of indebtedness. 38 C.F.R. § 1.963(b). By way of history, in May 2006 VA sent the Veteran a letter proposing to suspend his VA disability compensation benefits effective May 20, 2005, due to his "fugitive felon" status. The Veteran responded in a May 2006 letter and indicated he was not and has never been a fugitive felon. VA acknowledged the Veteran's response in a June 2006 letter and informed him that his benefits would be suspended unless they received notification from the law enforcement agency indicating that his warrant had been cleared. In July 2006, VA terminated the Veteran's benefits effective May 20, 2005, due to fugitive felon status, which created a debt of $33,780.97, and notified him of the same. The May 2006 and July 2006 letters to the Veteran were both sent to his last home address of record. In August 2006, the DMC sent a demand letter to the Veteran at his last home address of record. This letter indicated he had been overpaid $33,780.97, and that VA planned to withhold those benefits until the overpayment was recouped, beginning November 2006. This letter contained a document titled "Notice of Rights and Obligations" which explained the Veteran's right to dispute the debt and request a waiver. In October 2006, VA received correspondence from the Veteran specifically addressing the July 2006 letter he received, in which he disputed the debt created by his fugitive felon status, and informing VA of his incarceration status and new address in prison. An October 2006 report of contact with the Probation and Parole Commission indicates that the Veteran was arrested on June 2, 2005, for violation of parole felony charges. His warrant was cleared on June 2, 2005, and he had remained in custody since that date. In October 2006, VA adjusted the Veteran's award, reinstating benefits effective June 2, 2005, the date the warrant was cleared, and reduced his benefits effective August 2, 2005, due to incarceration. This action reduced the debt to $27,858.57. In an October 2006 letter to the Veteran, which was sent to his address in prison, VA notified the Veteran that his benefits would be reduced to the 10 percent rate effective August 2, 2005, due to incarceration following conviction of a felony. See 38 C.F.R. § 3.665. This letter informed him that the adjustment resulted in an overpayment of benefits, that he would be receiving a separate letter from the DMC regarding this overpayment and repayment information, and instructed him to contact the DMC concerning this repayment. Review of the file fails to reveal that a letter from the DMC was sent to the Veteran. In a December 2006 letter, the Veteran indicated he was aware that his VA compensation had been reduced due to incarceration. Although the October 2006 letter had informed him of the date of reduction and there is no indication he did not receive that letter, he requested that VA inform him of the beginning date of that reduction. In a December 2007 letter, VA informed the Veteran that he was sent a letter in October 2006 indicating his payments would be reduced due to his incarceration, effective June 2, 2005. This letter also informed the Veteran that since action was not taken to reduce his benefits until October 2006, he was overpaid VA benefits and that his reduced compensation amounts would be applied to his outstanding debt. An enclosure to this letter included the October 2006 letter which had been previously sent to him. No additional letter from the DMC was sent to the Veteran. In November 2011, the DMC received the Veteran's request for waiver of his debt and that same month the DMC denied the waiver due to timeliness. Affording him the benefit of the doubt, the Board finds the Veteran was never properly notified of his rights and obligations to dispute the debt and request a waiver. See 38 U.S.C. § 5302(a). The August 2006 letter to the Veteran which contained this information was sent to his home address of record; the Veteran notified VA of his new address in prison in October 2006, and VA failed to take corrective action by resending the August 2006 letter. Although the October 2006 letter to the Veteran instructed him to contact the DMC regarding repayment, this letter did not contain any information regarding the Veteran's rights and obligations to dispute the debt, as required by law. See 38 U.S.C. § 5302(a). In fact, the October 2006 letter to the Veteran indicated he would receive separate correspondence from the DMC, and there is no evidence that the DMC sent the Veteran any additional correspondence regarding his debt. Based on the foregoing, the Board finds the Veteran never received actual notice of his indebtedness, which includes his rights and obligations to dispute the debt and request a waiver. See 38 U.S.C. § 5302(a); 38 C.F.R. § 1.963(b). Therefore, the Board considers his November 2011 request for a waiver to be timely. ORDER The Veteran's request for waiver of recovery of overpayment of VA disability compensation benefits in the amount of $27,858.57 is considered timely. REMAND The Board finds the Veteran submitted a timely request for the waiver of recovery of an overpayment of VA disability compensation benefits in the amount of $27,858.57. Therefore, his claim must be remanded for the AOJ to address his waiver request on the merits in the first instance. Accordingly, the case is REMANDED for the following action: Readjudicate the Veteran's claim for entitlement to waiver of recovery of an overpayment of VA disability benefits in the amount of $27,858.57 on the merits. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs