Citation Nr: 18115652 Decision Date: 07/02/18 Archive Date: 07/02/18 DOCKET NO. 15-05 805 DATE: July 2, 2018 ORDER The September 2012 request for waiver of indebtedness was timely filed; the appeal is granted to this extent only. REMANDED Entitlement to waiver of recovery of an overpayment of Post 9/11 GI Bill education benefits, to include whether the underlying debt is valid, is remanded. FINDINGS OF FACT 1. The appellant was notified in June 2012 that he had been overpaid for education benefits under the Post 9/11 GI Bill. 2. In September 2012, VA received correspondence from the Veteran, indicating a disagreement with the overpayment. 3. A valid request for waiver was received by VA within 180 days of the June 2012 notice of overpayment. CONCLUSION OF LAW The September 2012 request for waiver of indebtedness was timely filed. 38 U.S.C. § 5302 (2012); 38 C.F.R. § 1.963 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from October 1984 to March 1985, September 2006 to December 2007, and from January 2011 to January 2012. The appellant is his son. In June 2015, the Veteran and the appellant testified at a hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. VLJs who conduct hearings must participate in making the final determination of the claim on appeal. 38 U.S.C. § 7107 (c) (2012); 38 C.F.R. § 20.707 (2017). In a May 2016 letter, the Board notified the appellant that the hearing VLJ was no longer employed by the Board and that he had the right to another hearing. See 38 C.F.R. § 20.717 (2017). He was notified that if he did not respond within 30 days, the Board would assume that another hearing was not desired and would proceed to adjudicate the claim on appeal. No response to the letter was received within the 30-day time frame; thus, the Board finds that the appellant has waived his right to a second hearing and will proceed with adjudication. Analysis An overpayment is created when VA determines that an individual has received payments in excess of the amount due or to which he or she is entitled. 38 C.F.R. § 1.962. The debtor may challenge the validity or amount of the debt owed, and may apply for a waiver of a debt found to be valid. 38 C.F.R. §§ 1.911 (c), 1.963. In this case however, the threshold issue is whether the appellant’s request for waiver of indebtedness was filed in a timely manner. Generally, when the notice of indebtedness was issued on or after April 1, 1983, a request for waiver of indebtedness shall only be considered if made within 180 days following the date of the notice of indebtedness issued to the debtor by the VA. See 38 C.F.R. § 1.963. The basic facts in this case are not in dispute. In June 2012, the appellant was notified by VA of an overpayment resulting in a debt of $158.32 in books and supplies; $1,415.65 for tuition and fees; and $2,213.99 for housing payments. In September 2012, 91 days after the notice was sent, VA received a statement from the Veteran, indicating disagreement with the method through which his son’s transferred Post 9/11 GI Bill benefits were calculated. In November 2012, VA determined that, because the request for waiver did not come directly from the appellant, it was not an actual request for waiver but rather a disagreement with the calculations made by VA concerning the appellant’s benefits. In August 2014, the appellant submitted a statement to VA in which he noted that he had been unaware of the overpayment, and that the June 2012 statement from his father was intended as a request for waiver. A statement of the case, issued in November 2014, found that the appellant’s request was not timely, as it was submitted over 180 days after the June 2012 notice of indebtedness. At the June 2015 hearing, both the Veteran and the appellant testified that the June 2012 statement was intended as a request for waiver of the debt. The Board has reviewed the claims file and finds that the Veteran’s September 2012 request for waiver of indebtedness was timely filed, as it was filed within the requisite 180 days of the June 2012 notice of the overpayment. While the waiver was initially found to be untimely because the request came from the Veteran, rather than the appellant, the Board can find no regulation or case law to support such a requirement. See 38 C.F.R. §§ 1.963 (b)(2) (request for waiver must come from “individual requesting waiver” or “requester”). Here, the Veteran’s September 2012 statement regarding calculation of the overpayment can be reasonably construed to be a disagreement with the overpayment and, thus, a request that it be waived. Therefore, in light of the above and resolving reasonable doubt in the appellant’s favor, the Board finds that his request for a waiver of the overpayment was received by VA in September 2012, well within 180 days of the June 2012 notice of the debt. Thus, the request was timely, and the request should be considered on its merits. 38 C.F.R. § 1.963 (b)(2); 38 U.S.C. § 5107 (providing that reasonable doubt will be resolved in the claimant’s favor for any issue material to the determination of a matter). However, as discussed in further detail below, further development is needed prior to analyzing the merits of the claim. REASONS FOR REMAND As the Board determined herein that the appellant’s request for a waiver of overpayment was timely filed, the merits of the waiver request must be remanded for adjudication by the agency of original jurisdiction in the first instance. The matter is REMANDED for the following action: The matter should be referred for review of the merits of the waiver request, to include whether the overpayment was validly created. (Continued on the next page)   (continued on next page) R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel