Citation Nr: 18123749 Decision Date: 08/02/18 Archive Date: 08/02/18 DOCKET NO. 15-07 063 DATE: August 2, 2018 ORDER The overpayment of Chapter 33 (Post-9/11 GI Bill) education assistance benefits payments in the amounts of $166.66 for books and supplies; $2,031.29 in housing benefits; and $324.00 for tuition and fees were properly created and are a valid debt. REMANDED Entitlement to a waiver of recovery of overpayment of Chapter 33 (Post-9/11 GI Bill) education assistance is remanded. FINDINGS OF FACT 1. Prior to starting the summer semester in May 2014, the Veteran reduced his credit load from 8 credits to 4 credits; although his school was aware of this fact, VA was not informed until October 2014. 2. The Veteran was subsequently paid education benefits for books, supplies, housing, tuition and fees based on an 8-credit course load. 3. The Veteran was not legally entitled to the benefits in question, and VA was not solely responsible for their erroneous payment. CONCLUSION OF LAW The overpayment of Chapter 33 (Post-9/11 GI Bill) education assistance was legally created and is a valid debt. 38 U.S.C. §§ 5112, 5302 (2012); 38 C.F.R. §§ 1.911, 1.956, 1.962, 3.500, 21.9635 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from January 2004 to March 2013. At the outset, the Board notes that the issue before it was characterized solely as one addressing the validity of the debt charged to the Veteran; however, as explained in the Remand section below, the issue of entitlement to waiver of that debt has been consistently raised by the Veteran throughout the course of the appeal. Therefore, the Board has construed this matter as being part of the present appeal. In 2014, the Veteran signed up for community college classes and sought Post-9/11 GI Bill benefits. Although he initially signed up for 8 credit hours for the semester commencing in May 2014, he ultimately reduced that number to 4 prior to the first day of class. Despite this change, he was paid $166.66 for books and supplies, $2,031.29 in housing benefits, and $324.00 for tuition and fees, based on the higher course load. He now asserts that the overpayment is invalid, as he reduced his classes before the semester started and the school erred in failing to inform VA. The Post-9/11 GI Bill was enacted by Congress in June 2008. See Pub. L. No. 110-252, Title V, §§ 5001-5003, 122 Stat. 2357 (2008). The statutory provisions are codified at Title 38 U.S.C. Chapter 33. Under the Chapter 33 provisions, an eligible individual is entitled to a maximum of 36 months of educational assistance. 38 C.F.R. §§ 21.9550, 21.9570. There is no dispute in the present case that the Veteran meets the basic eligibility requirements for Chapter 33 Post-9/11 G.I. Bill educational benefits, for purposes of covering the cost associated with pursuing courses at the college he chose. It was through this program that, in 2014, he was overpaid education benefits which he now asserts are invalid. An overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. See 38 U.S.C. § 5302; 38 C.F.R. § 1.962. An overpayment may arise from virtually any benefits program administered pursuant to VA law, including pension, compensation, dependency and indemnity compensation (DIC), educational assistance benefits and subsistence allowance, insurance benefits, burial and plot allowances, clothing allowance, and automobile or other conveyance and adaptive equipment allowances. 38 C.F.R. § 1.956 (a). VA generally is required to recover erroneous VA payments or overpayment of benefits. See Edwards v. Peake, 22 Vet. App. 57, 59 (2008); see also 38 U.S.C. § 5314 (a) (generally requiring VA to deduct from future benefit payments a debt arising from a person’s participation in a VA benefits program). For a determination that the overpayment was not properly created, such that the debt was not valid, it must be established that the claimant was either legally entitled to the benefits in question or, if the claimant was not legally entitled, then it must be shown that VA was solely responsible for the claimant being erroneously paid benefits. Administrative errors include all administrative decisions of entitlement, whether based upon mistake of fact, misunderstanding of controlling regulations or instructions, or misapplication of law. VAOPGPREC 2-90 (July 17, 1989), 55 Fed. Reg. 27757 (1990). Sole administrative error connotes that the claimant neither had knowledge of nor should have been aware of the erroneous award. Further, neither the claimant’s actions nor his or her failure to act must have contributed to payment pursuant to the erroneous award. 38 U.S.C. § 5112 (b) (9), (10) (2012); 38 C.F.R. § 3.500 (b)(2) (2017); Jordan v. Brown, 10 Vet. App. 171 (1997) (sole administrative error is not present if the payee knew, or should have known, that the payments were erroneous). Thus, a finding of sole administrative error requires not only error on the part of VA, but that the beneficiary is unaware that the payments are erroneous. Here, the Board cannot find based on the evidence before it that the Veteran was legally entitled to the benefits paid to him in 2014. Although he properly contacted his school before the semester began and reduced his course load to 4 hours, he was still paid as if he were taking an 8-hour schedule. Thus, he received excess benefits to which he was not entitled. Additionally, VA is not solely responsible for the erroneous payment. The monies were paid based on a June 2014 certification by the Veteran’s school that he was enrolled in 8 credit hours for the semester in question. It was not until October 2014 that the school informed VA of the earlier schedule adjustment; VA immediately adjusted his benefits and the overpayment was calculated. Thus, as VA’s actions were based upon the information provided by the educational institution, the creation of the overpayment was not due solely to VA administrative error. The overall debt is valid. The Veteran was paid education benefits based on 4 extra credit hours for which he was not enrolled in a class. The Veteran contends that the school bears fault for the overpayment, as it did not promptly notify VA of the change, and the Board notes that it appears the school erred in its initial certification of the Veteran’s schedule, as well as in subsequently taking over 5 months to correct the error; however, regardless of the fault of the school, the fact remains that the Veteran was not entitled to be paid benefits for classes in which he was not enrolled. The matter of whether the school caused this error goes to the question of waiver, not whether the debt was valid. The question regarding validity involves whether or not the Veteran should have been paid for 4 credit hours or 8 credit hours. Clearly, the evidence of record shows that he was only entitled to be paid for the actual status of his enrollment. Moreover, to the extent the VA was in error by making the educational assistance payments for the 8-hour course load, it is clear that the Veteran should have known that the educational benefits provided for credit hours he did not take were not his to retain. Ignorance cannot be used as an excuse for failure to follow a promulgated regulation. See Morris v. Derwinski, 1 Vet. App. 260 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947). The United States Court of Appeals for Veterans Claims has confirmed that VA regulations are “binding on all who seek to come within their sphere,” regardless of whether an appellant has actual knowledge of what is in the regulations. Jernigan v. Shinseki, 25 Vet. App. 220 (2012). The law is clear that the purpose of the VA educational assistance programs is to provide for the pursuit of education, and in this case, the Veteran received education benefits for a course that he did not take. The overpayment was not the result of sole administrative error on the part of VA, as the educational institute played a role in the error and the Veteran should have realized that he was not entitled to the benefits that he received. Thus, the Board finds that the decision to recoup the debt was proper, as the money owed is a valid debt to VA. REASONS FOR REMAND The Board notes that the adjudication of this case, to include the January 2015 Statement of the Case, focused upon the validity of the debt; i.e., whether the overpayment was properly created. However, based on statements made in the Veteran’s November 2014 Notice of Disagreement, March 2015 substantive appeal, and the November 2017 Informal Hearing Presentation provided by his representative, the Board finds that the Veteran has consistently raised the issue of whether a waiver of recovery of that overpayment is warranted in this case. As noted supra, the elements for determining whether a waiver is warranted are different from the validity of the debt, and include the legal principles of equity and good conscience found at 38 C.F.R. § 1.965. As it does not appear this matter has been addressed, a remand is required to provide the Veteran with adequate notification as to the elements necessary for such a waiver and the opportunity to present such evidence. The matter is REMANDED for the following action: 1. Provide the Veteran with adequate notification as to the elements necessary for a waiver of recovery of overpayment to include the relevant legal principles of equity and good conscience. 2. Adjudicate the issue of whether the Veteran is entitled to a waiver of recovery of the overpayment. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel