Citation Nr: 1809780 Decision Date: 02/15/18 Archive Date: 02/27/18 DOCKET NO. 14-19 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Atlanta Education Center in Atlanta, Georgia THE ISSUES 1. Whether the debt resulting from the payment of educational assistance benefits under the provisions of Chapter 33, United States Code (Post 9/11 GI Bill) in the calculated amount of $478.50 was properly created. 2. Entitlement to waiver of recovery of overpayment of educational assistance benefits under the Post 9/11 GI Bill in the calculated amount of $478.50. ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The appellant has received Post 9/11 GI Bill benefits, as her spouse, the Veteran, transferred his eligibility for such education benefits to the appellant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 decision by the Committee on Waivers and Compromises (COWC) of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. Jurisdiction of the case was subsequently transferred to the Atlanta Education Center in Atlanta, Georgia. Throughout this appeal, the appellant claimed that there were mitigating circumstances which rendered the debt at issue herein invalid. The RO has not currently taken action on this issue. As it is part and parcel to the issue on appeal, the Board will accept jurisdiction over this contention at this time. See Schaper v. Derwinski, 1 Vet. App. 430, 434 (1991). The appellant failed to attend the video conference hearing scheduled for her in October 2017. FINDING OF FACT The overpayment of educational assistance benefits under the provisions of the Post 9/11 GI Bill in the calculated amount of $478.50 was due to mitigating circumstances beyond the appellant's control which prevented her from continuously pursuing her program of education. CONCLUSIONS OF LAW 1. The debt created by VA's payment of educational assistance benefits under the Post 9/11 GI Bill in the calculated amount of $478.50 is not valid. 38 U.S.C. §§ 3002, 3011 (2012); 38 C.F.R. §§ 21.7020(b)(19), 21.7070, 21.7144, 21.7153 (2017). 2. The issue of entitlement to waiver of recovery of overpayment of educational assistance under the Post 9/11 GI Bill in the calculated amount of $478.50 is moot. 38 U.S.C.A. § 5302 (2012); 38 C.F.R. §§ 1.962, 1.963, 1.965, 20.101 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The RO determined that VA has improperly paid on behalf of the appellant educational assistance benefits under the Post 9/11 GI Bill in the calculated amount of $478.50. Specifically, the RO determined that this debt was created when the appellant withdrew from a three credit class she was taking in the spring of 2013. The appellant contends that this debt was improperly created. Alternatively, she contends that that she should be granted a waiver of recovery of this overpayment. After reviewing the appellant's claims file, the Board concludes that the overpayment of educational assistance benefits under the provisions of Post 9/11 GI Bill in the calculated amount of $478.50 was due to mitigating circumstances beyond the appellant's control which prevented her from continuously pursuing a program of education. 38 C.F.R. §§ 21.7020(b)(19). Specifically, the appellant has shown that her family was forced to move across country unexpectedly in order to care for an ailing family member, who was unexpectedly no longer able to care for himself due to dementia. She claims, and the evidence of record tends to support, that the process of the unexpected move, along with suddenly having to provide care for her ailing father-in-law, resulted in her having to suspend her program of education. Accordingly, the debt created by VA's payment of educational assistance under the Post 9/11 GI Bill in the calculated amount of $478.50 was due to mitigating circumstances beyond the appellant's control which prevented her from continuously pursuing her program of education. As such, the debt was not properly created. 38 U.S.C. §§ 3002, 3011 (2012); 38 C.F.R. §§ 21.7020 (b)(19), 21.7070, 21.7144, 21.7153 (2017). As the debt was not properly created, there is no overpayment, and the issue of a waiver of the recovery of overpayment of educational assistance in the calculated amount of $478.50 is moot. Dismissal of the appeal as to this matter is thus warranted. See 38 C.F.R. § 20.101(d) (granting the Board the authority to determine its own jurisdiction and to dismiss any matter over which it does not have jurisdiction). ORDER The overpayment of educational assistance under the Post 9/11 GI Bill in the calculated amount of $478.50 was not properly created; the appeal is therefore granted, subject to controlling regulations governing the payment of monetary awards. The issue of entitlement to waiver of the recovery of educational assistance benefits under the Post 9/11 GI Bill in the calculated amount of $478.50 is dismissed as moot. _________________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs