Citation Nr: 1812992 Decision Date: 03/05/18 Archive Date: 03/13/18 DOCKET NO. 16-12 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to waiver of overpayment in the amount of $3,131.80. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Yoffe, Associate Counsel INTRODUCTION The Veteran served on active duty for training in the U.S. Army from May 1991 to September 1991, and on active duty as an infantryman from May 2003 to February 2004, and October 2005 to August 2007. The Veteran has additional service in the Iowa National Guard. The Veteran received a Combat Infantryman Badge and served in Southwest Asia. His final rank was as a staff sergeant. The matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2015 determination of the VA Debt Management Center (DMC) Committee on Waivers and Compromises (Committee). The Veteran testified at a video hearing before a Veterans Law Judge in November 2017. A transcript of the hearing has been associated with the record. The Veteran's service connection claim for the right shoulder is addressed in a separate Board adjudication. FINDINGS OF FACT 1. The April 2014 notice of indebtedness letter was mailed to the Veteran's address of record at the time and the Veteran acknowledged he received it. 2. The Veteran failed to submit a request for overpayment within 180 days of the initial notification of the existence of the debt. CONCLUSION OF LAW The Veteran did not file a timely request for waiver of recovery of overpayment of VA compensation in the amount of $3,131.80. 38 U.S.C. § 5302(a) (2012); 38 C.F.R. § 1.963 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2017). The Veteran and his representative have not raised any argument(s) with respect to the adequacy of notice and assistance. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the appeal may be considered on the merits. With respect to the November 2017 Board hearing, the undersigned VLJ clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran's claim. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103 Waiver In general, recovery of overpayments of any benefits made under laws administered by VA shall be waived if there is no indication of fraud, misrepresentation, or bad faith on the part of the person or persons having an interest in obtaining the waiver and recovery of the indebtedness from the payee who received such benefits would be against equity and good conscience. 38 C.F.R. § 1.963(a)(2017). As in this case, when notice of indebtedness is dated on or after April 1, 1983, a request for waiver of indebtedness shall only be considered if the request is made within 180 days following the date of a notice of indebtedness by the VA to the debtor. 38 C.F.R. § 1.963(b). The 180 day period may be extended if the individual requesting waiver demonstrated to the Chairperson of the Committee on Waivers and Compromises that, as a result of an error by either the Department of Veterans Affairs 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). If the requester does substantiate that there was such a delay in the receipt of the notice of indebtedness, the Chairperson shall direct that the 180 day period be computed from the date of the requester's actual receipt of the notice of indebtedness. 38 C.F.R. § 1.963(b). The Veteran notified the VA in a handwritten note in in December 2012 that he was divorce but did not specify the effective date of the divorce. In a Declaration of Status of Dependents, VA Form 21-686c received in April 2013, the Veteran reported that he was divorced in February 2010. According to a Declaration of Status of Dependents dated April 2013, the Veteran's marriage terminated in February 2010. In letter dated in April 2014, the VA notified the Veteran the VA had overpaid him $3,131.80. The overpayment occurred because he continued to receive spousal benefits after his divorce. The letter a Notice of Rights and Obligations, which would have outlined the proper timeframe for filing a request for waiver. The Veteran had several separate and unrelated waivers of VA compensation due to receiving drill pay in number of years, including 2013. A "Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances" (emphasis added) form was received in May 2014, although dated in August 2013. It is clear from the form, that this document was limited to waiver compensation due to 65 training days in 2013. It does not discuss, address, or otherwise support a finding that this document is a waiver of indebtedness related to the Veteran's divorce. Based on the date listed on the document, it had been completed prior to the Veteran ever even receiving the April 2014 notice. As noted in the June 2015 Decision on Waiver of Indebtedness, the Veteran did not submit a request for wavier within 180 days of the April 2014 notice. This decision notes that the waiver request was received in March 2015. The Veteran has not argued he did not receive the letter, instead acknowledging he received it. Instead, the Veteran states he did file a request for waiver within 180 days. The evidence of record does not support this conclusion. There is no document of record which could be construed as a request for waiver of overpayment of spousal benefits. The Veteran's main argument is that he timely notified the VA of his divorce and that there should have been no overpayment if the VA had acted timely. Even assuming his argument is correct, the Veteran notified VA of his divorce in December 2012, over two years after the February 2010 divorce, but still failed to file a request of waiver to the VA within 180 days. On documents received January 2016 and September/August 2015 (same document submitted twice), the Veteran submitted statements on a VA Form 9 and two Notice of Disagreements. In these statements, the Veteran contended that VA had waived a portion of the debt. In these documents, he stated that he did receive the overpayment notice in April 2014. In a February 2016 SSOC, the Veteran was notified that the document he was referring to was not a waiver of the overpayment now on appeal, but represented a reduction in debt owed as part of a repayment plan. The SSOC is correct. The Veteran had not received a waiver of indebtedness for the overpayment of spousal benefits. Based on the above analysis, the Board concludes that the Veteran's application requesting waiver of recovery of the indebtedness at issue was not timely filed. During the Board hearing, the Veteran was advised that a copy of any timely waiver request was necessary. The Veteran's has not provided a copy of this request or a reason for an inability to file a waiver request. No relevant exceptions to the legal criteria have been provided or are applicable in this case, and therefore, the Board has no authority to disregard the limitations pertaining to timeliness standards for waiver requests under 38 C.F.R. § 1.963(b)(2). Accordingly, as the Veteran's request for waiver of recovery of an overpayment was not timely filed, his appeal must be denied. ORDER Entitlement to waiver of overpayment in the amount of $3,131.80 is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs