Citation Nr: 1815116 Decision Date: 03/09/18 Archive Date: 03/19/18 DOCKET NO. 11-05 627A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether an overpayment of vocational rehabilitation subsistence allowance in the amount of approximately $645.78 was properly created. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1998 to July 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 decision of the Supervisory Vocational Rehabilitation Counselor at the Department of Veterans Affairs (VA) Vocational Rehabilitation and Employment (VRE) in Jacksonville, Florida. See VA Form 20-8992 dated August 2010 (informing the Veteran that his vocational rehabilitation subsistence had been amended creating an overpayment). The Board notes that the issue on appeal concerns the validity of the VRE subsistence overpayment, which is separate from the issue of entitlement to a waiver of overpayment. In the latter, the Board notes that an October 2011 decision of the Committee on Waivers and Compromises denied the Veteran's request for the waiver of the overpayment. That decision has not been appealed to the Board. In July 2013, the Veteran requested a Travel Board hearing. A hearing was scheduled in August 2013 and the Veteran did not appear. The Veteran has not provided good cause for not appearing at the scheduled hearing, as such the Board considers the Veteran's request for a Travel Board hearing withdrawn pursuant to 38 C.F.R. § 20.702(d) (2017). The Board remanded the case in February 2014 for additional development. As discussed below, subsequent to a recalculation/accounting performed in accordance with a February 2014 remand directive the amount of overpayment was reduced from $2,082.89 to $645.78. The amount of the recalculated overpayment is reflected on the title page. The case has returned to the Board for further appellate action. FINDINGS OF FACT 1. In November 2010, the Veteran's vocational rehabilitation subsistence allowance was reduced for the period from June 14, 2010 to December 4, 2010. 2. In March 2017, the amount of the Veteran's indebtedness was reassessed and reduced from $2,082.89 to $645.78. 2. The overpayment of VA vocational rehabilitation subsistence allowance in the amount of $645.78 was properly created. CONCLUSION OF LAW The overpayment of VA vocational rehabilitation subsistence allowance based upon changes in enrollment status from June 14, 2010 to December 4, 2010 was properly created. 38 U.S.C. §§ 3015, 3585 (2012); 38 C.F.R. §§ 21.7136, 21.7144 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Remand Compliance As noted in the Introduction, this case was remanded for additional development in February 2014. The Board is satisfied that there has been substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-67 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1999) (holding that the Board errs as a matter of law when it fails to ensure compliance with its remand orders). II. Duties to Notify and Assist The Duties to Notify and to Assist do not apply to cases involving the validity of a debt, which are not claims for benefits. See Reyes v. Nicholson, 21 Vet. App. 370, 379-80 (2007); Lueras v. Principi, 18 Vet. App. 435, 438 (2004); Barger v. Principi, 15 Vet. App. 132 (2002). Thus, these Duties are not for application in this matter. III. Whether the Overpayment was Properly Created The Veteran appeals the validity of an overpayment of vocational rehabilitation subsistence allowance of approximately $2,082.89 for the period from June 2010 to December 2010. Initially, the Board notes that the RO re-adjudicated the amount of overpayment pursuant to the Board's February 2014 remand directives. In a March 2017 Supplement Statement of the Case (SSOC), the RO reported that the Veteran's original counselor did not process his award appropriately; upon calculation correction, the RO determined that the remaining debt amounted to $645.78. In May 2010, the Veteran submitted to his VRE counselor his course schedule of 12 credit hours at I. (vocational school) for the school quarter from June 2010 to September 2010. On June 29, 2010, the Veteran emailed his VRE counselor to explain that he could not handle his course load and needed to drop some courses. The record of evidence includes a June 30, 2010 notation of the Veteran's VRE Counselor to the effect that the Veteran telephoned him and explained that he was doing poorly in his three courses. The Veteran, according to the counselor, attributed his poor performance to the fact that his classes occurred at night; as a consequence, the Veteran reported that he needed to drop two of the three courses. The Board notes that the Veteran's course schedule (dated May 2010) reflects that the courses were scheduled for 3 days a week from 6:00PM to 10:20PM. The VRE counselor noted that his vocational rehabilitation subsistence was discussed, opining that there were no mitigating circumstances. An August 2010 notice letter (VA Form 20-8992) conveyed that the Veteran's vocational rehabilitation subsistence was amended (reduced), in pertinent part due the reduction of his course load from 12 to 4 credit hours for the June 2010 to September 2010 quarter. The letter noted that this resulted in an overpayment of $625.79. The Veteran appealed the reduction. In a November 2010 decision, a supervisory VRE counselor wrote that mitigating circumstances did not apply in the Veteran's case. The rate reduction was made effective on June 14, 2010 (the first day of the school quarter). Moreover, the supervisory VRE counselor wrote that it had been discovered that the Veteran's overpayment had been calculated incorrectly. Specifically, it had been upwardly adjusted using quarter hours rather than semester hours; four quarter hours for the June 2010 to September 2010 quarter was less than half-time and not half-time, and eight quarter hours for the quarter from September 2010 to December 2010 was half-time and not full-time. A January 2011 counseling note prepared by the Veteran's VRE counselor reported that he met with the Veteran. Furthermore, it was decided that the Veteran was unable to continue attending classes due to health concerns. Pursuant to this, an Individualized Written Rehabilitation Plan (IWRP) was redeveloped. A February 2011 decision from the VRE Office reflects that with regard to the reduction in his enrollment at I. effective January 2011, mitigating circumstances were found due to health and safety concerns. Under 38 C.F.R. § 21.324(i) (2017), in cases involving the reduction in rate of pursuit of VRE, the reduction in subsistence allowance will generally be effective at the end of the month in which the reduction occurs, except that in certain circumstances including a veteran's withdrawal from courses, if there are no "mitigating circumstances," the reduction will be effective the first day of the term; if there are mitigating circumstances, the reduction will be effective at the end of the month or the end of the term, whichever is earlier, except that if the reduction occurs at the beginning of the term, benefits will be reduced effective the first day of the term. "Mitigating circumstances" generally include (i) an illness of the program participant; (ii) an illness or death in the program participant's family; (iii) an unavoidable change in the veteran's conditions of employment; (iv) an unavoidable geographical transfer resulting from the veteran's employment; (v) immediate family or financial obligations beyond the control of the veteran which are found by the VA to require the veteran to suspend pursuit of the rehabilitation program; (vi) discontinuance of the course by the educational institution; (vii) the first instance on or after June 1, 1989 that a veteran withdraws from courses totaling not more than six semester hours or the equivalent thereof, which has been granted for the Veteran in November 2006); and (viii) difficulties in obtaining child care or changes in such arrangements which are beyond the control of the program participant and which require interruption of the rehabilitation program in order for the participant to provide or arrange for such care. As discussed above, the AOJ recalculated and then re-adjudicated the propriety of the Veteran's overpayment pursuant to directives in the Board's February 2014 remand. Based upon enrollment certifications, the Veteran made two changes to his enrollment during the applicable add/drop period for the academic quarter in question. This made the Veteran ineligible for a 6 credit exclusion and the application of "mitigating circumstances." The AOJ found that the Veteran's award had been calculated incorrectly. As noted above, the amount of overpayment was reduced from $2,082.89 to $625.79. Upon review of the evidence of record and applicable laws and regulations, the Board finds that the debt was properly created. Furthermore, the Board notes that the AOJ has already corrected an error in the accounting of the amount of the indebtedness. The appellant obtained funds to which he was not entitled. To the extent that there was error in the amount of the debt, that error was corrected. Accordingly, the Board concludes that the overpayment of $625.79 is valid, and the benefit sought on appeal must be denied. ORDER The overpayment of vocational rehabilitation subsistence allowance in the amount of $625.79 was properly created; the appeal is denied ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs