Citation Nr: 1815993	
Decision Date: 03/16/18    Archive Date: 03/23/18

DOCKET NO.  14-13 579	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma



THE ISSUE

Whether the appellant's request for a waiver of debt resulting from overpayment of Chapter 35 Dependents' Educational Assistance (DEA) benefits in the calculated amount of $1921.50 (including accrued interest and administrative collection costs) was timely filed.



ATTORNEY FOR THE BOARD

M. Postek, Counsel




INTRODUCTION

The Veteran served on active duty from November 1971 to November 1975 and from January 1979 to May 1996.  The appellant is the Veteran's daughter.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 decision of the Committee on Waivers and Compromises (Committee) at the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  Jurisdiction of the appellant's education file containing the relevant information related to this appeal was with the RO in Muskogee, Oklahoma.

This appeal was processed using a paper education file and the Veterans Benefits Management System (VBMS).


FINDING OF FACT

The appellant requested a waiver of her debt resulting from overpayment of Chapter 35 DEA benefits in the calculated amount of $1921.50 (including accrued interest and administrative collection costs) more than 180 days after notification of the debt; she does not contend that notification of the debt was delayed.


CONCLUSION OF LAW

The criteria for a timely request for waiver of debt resulting from overpayment of Chapter 35 DEA benefits in the calculated amount of $1921.50 (including accrued interest and administrative collection costs) have not been met.  38 U.S.C. § 5302 (2012); 38 C.F.R. §§ 1.963, 1.965 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's notification and assistance duties are not applicable in this case because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law.  See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002).  The facts are not in dispute; instead, resolution of the claim is wholly dependent on the application of the laws and regulations related to the filing requirements for requests for waivers of indebtedness.  See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 23, 2004).

In the October 2015 remand, the Board instructed the agency of original jurisdiction (AOJ) to obtain a copy of the July 5, 2012, notification of indebtedness.  The record shows that VA's Debt Management Center (DMC) responded that it does not maintain copies of those letters. See February 2016 email correspondence.  Given the fact that the education file does contain other documentation of the date the DMC letter was sent and that the appellant has indicated that she is fully responsible for her delayed response to the notice of debt, the Board finds that no further development is necessary in this regard.  See March 2014 substantive appeal; see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided).
  

Law and Analysis

Recovery of overpayment 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 U.S.C. § 5302 (2012); 38 C.F.R. §§ 1.963, 1.965 (2017).

The threshold question for a request for a waiver of debt from overpayment is whether the waiver request was timely.  A request for waiver of an indebtedness (other than loan guaranty) shall only be considered if it is made within 180 days following the date of a notice of indebtedness issued on or after April 1, 1983, by VA to the debtor.  The 180-day period may be extended if the individual requesting waiver demonstrates to the Chairperson of the Committee that, as a result of an error by either VA 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 U.S.C. § 5302; 38 C.F.R. § 1.963(b).

In this case, the appellant was in receipt of Chapter 35 DEA benefits.  In June 2012 and August 2012 letters, the RO notified her that changes in enrollment (beginning in January 2012 and April 2012 respectively) resulted in an overpayment of benefits; that she would receive a letter about the amount of any debt; and included an explanation of how she may be able to reduce her debt by submitting additional information.  The appellant did not respond to those letters.

The record shows that VA initially assessed the resulting debt in July 2012 and notified the appellant of the debt and her waiver rights in a July 5, 2012, letter.  The record also shows that she was aware of the revision to the debt following an August 2012 RO letter.  The total amount of the debt was calculated as $1921.50 (including accrued interest and administrative collection costs).  See April 2013 Committee decision referencing DMC CAROLS letter screen to verify date of initial notification letter with waiver rights and date of waiver request); January 2014 CAROLS screen printout; March 2014 substantive appeal (appellant indicated that she "[took] full responsibility for [her] delayed response to this notice of debt" and that she "[a]dmittedly . . . did receive notices from the VA regarding her debt").  In April 2013, the appellant submitted a request for a wavier of the debt, in which she explained that the debt was accrued over a six-month period the year prior while she was contemplating her future, and that the debt was "caused only by [her] own irresponsibility."

Although any actual notice letters from the DMC are unavailable, the appellant does not contest the above information, including the timeliness of the notification of the debt.  In the absence of the appellant failing to receive the notice of the debt in a timely manner, there is no means by which to extend the 180-day deadline for filing a request for a waiver of that debt.

The Board acknowledges the appellant's reports following assessment of the debt of having trouble adjusting to life back home during the winter and spring quarters of 2012 after her return from an East African mission trip in the fall semester and her reports as to her volunteer work and plans for the future, as well as her concerns about disappointing her father and meeting with a new VA advisor about her education history. See April 2013 waiver request, October 2013 notice of disagreement, March 2014 substantive appeal.  Nevertheless, these reports were outside of the 180-day time period to request a waiver, and the ability to address whether a waiver is warranted is predicated on a timely filed waiver request.  See Narron v. West, 13 Vet. App. 223 (1999).

Based on the foregoing, the Board finds that the criteria for a timely request for waiver of debt resulting from an overpayment of Chapter 35 DEA benefits in the calculated amount of $1921.50 have not been met.  As the law is dispositive in this case, the claim must be denied based on a lack of legal entitlement under the law.  Sabonis, 6 Vet. App. at 430.

ORDER

As the appellant did not file a timely request for a waiver of debt resulting from overpayment of Chapter 35 DEA benefits in the calculated amount of $1921.50 (including accrued interest and administrative collection costs), the appeal is denied.



_________________________________________________
J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals