Citation Nr: 1825864 Decision Date: 04/26/18 Archive Date: 05/07/18 DOCKET NO. 14-34 607A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to a waiver of an overpayment of nonservice-connected pension benefits in the amount of $44,662.00, to include whether the waiver request was timely filed. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel INTRODUCTION The Veteran had active military service from June 1974 to March 1976. This matter comes on appeal to the Board of Veterans' Appeals (Board) from a May 2013 administrative decision by the U.S. Department of Veterans Affairs (VA) Debt Management Center, which denied the Veteran's claim on the basis that his waiver request was not timely. Additional lay and medical evidence was submitted into the record by the Veteran following the most recent readjudication of this appeal by the Agency of Original Jurisdiction (AOJ) in the September 2014 Statement of the Case (SOC). This new evidence has not been reviewed by the AOJ, and a waiver of review of this evidence by the Veteran or his representative is not of record. However, under section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, if new evidence is submitted by the veteran or his or her representative with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the veteran explicitly requests AOJ consideration. 38 U.S.C. § 7105(e) (2012). Here, the Veteran's Substantive Appeal was submitted in October 2014 and the Veteran has not explicitly requested AOJ consideration. Therefore, the claim does not need to be remanded solely for consideration of such new evidence. Id. This appeal was processed using the paperless, electronic Virtual VA and Veteran Benefits Management System (VBMS) claims processing systems. FINDING OF FACT 1. In January 2007, the Veteran was informed that VA had reduced his benefits due to a change in his Social Security Administration (SSA) income, creating an overpayment. 2. In a February 2007 letter and attached Notice of Rights and Obligations, the Veteran was notified of an overpayment of Compensation and Pension benefits in the amount of $44,662.00, of the right to request a waiver of recovery of the overpayment, and of the 180-day time limit to request such a waiver. 3. The Veteran filed a request for waiver of overpayment of his nonservice-connected pension in March 2013, more than 180 days after notification of the overpayment at issue. CONCLUSION OF LAW As the request for a waiver of overpayment filed in March 2013 was not timely filed, VA may not address the merits of the waiver request. 38 U.S.C. § 5302(a) (2012); 38 C.F.R. §§ 1.911, 1.963 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating their claims. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). There has been no allegation or suggestion of any lapse on VA's part in meeting these duties. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Analysis The Veteran has requested waiver of recovery of an overpayment of VA nonservice-connected pension benefits in the amount of $44,662.00. For the reasons that follow, the Board finds that the Veteran's waiver request was not timely filed. A request for waiver of a debt, other than for loan guaranty, shall only be considered if made within 180 days following the date of a notice of the indebtedness to the debtor. The 180-day period may be extended if the individual requesting waiver demonstrated 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. See 38 C.F.R. § 1.963(b); see also 38 U.S.C. § 5302(a). The basic facts in this case are not in dispute. In January 2007, the Veteran was informed that VA had reduced his benefits due to a change in his SSA income, creating an overpayment. In a February 2007 letter and attached Notice of Rights and Obligations, the Veteran was notified of an overpayment of Compensation and Pension benefits in the amount of $44,662.00, of the right to request a waiver of recovery of the overpayment, and of the 180-day time limit to request such a waiver. No additional correspondence was received from the Veteran or his representative until March 2013, when the Veteran filed a request for waiver of the overpayment of his non-service-connected pension benefits. As noted, pursuant to VA statute and regulation, the Veteran had 180 days from the date of notice of overpayment to file a request for a waiver of overpayment. See 38 C.F.R. § 1.963(b); see also 38 U.S.C. § 5302(a). However, the record includes no document filed by the Veteran or his representative with the AOJ that constitutes a timely-filed request for waiver of overpayment, or any document referencing a request for an extension of the period for filing such a waiver request. Under these circumstances, the Board must conclude that the Veteran failed to timely file a request for waiver of the overpayment of non-service-connected pension benefits. The Veteran does not dispute the chronology of events in this case. Neither he nor his representative contends that the Veteran filed a timely request for a waiver of an overpayment, or that there was a delay in his receipt of the notification of indebtedness. While the Board is sympathetic to the Veteran and his financial circumstances, the legal authority governing the timeliness of waiver requests is clear and specific, and the Board is bound by such authority. In view of all the above, the Board must conclude that the request for waiver of overpayment, filed in March 2013, was not timely, and that, therefore, VA is constrained from considering the merits of the Veteran's waiver request. The claim is denied. ORDER As the request for waiver of recovery of an overpayment of nonservice-connected pension benefits in the amount of $44,662.00 was not timely filed, the appeal is denied. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs