Citation Nr: 18146787 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 15-06 283A DATE: November 1, 2018 ORDER A waiver of overpayment of special monthly pension benefits in the amount of $24,390.00 was not timely filed. FINDING OF FACT 1. In an August 2008 letter and attached Notice of Rights and Obligations, the appellant was notified of an overpayment of Compensation and Pension benefits in the amount of $24,390.00, of the right to request a waiver of recovery of the overpayment, and of the 180-day time limit to request such a waiver. 2. The appellant filed a request for waiver of overpayment of her special monthly pension benefits in April 2014, more than 180 days after notification of the overpayment at issue. CONCLUSION OF LAW As the request for a waiver of overpayment filed in April 2014 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 The Veteran served on active duty from October 1942 to October 1945. He died in April 1996. The appellant is his surviving spouse. This matter comes on appeal to the Board of Veterans' Appeals (Board) from a May 2014 administrative decision by the U.S. Department of Veterans Affairs (VA) Debt Management Center, which denied the appellant’s claim on the basis that his waiver request was not timely. In June 2018, the appellant’s daughter and power-of-attorney, J.S., testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Waiver of Indebtedness The appellant has requested waiver of recovery of an overpayment of VA nonservice-connected pension benefits in the amount of $24,390.00. For the reasons that follow, the Board finds that the 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). In May 2006, the appellant filed for pension benefits with aid and attendance. At that time the appellant resided at [redacted]. In January 2007, the RO granted entitlement to special monthly death pension with aid and attendance, effective May 31, 2006. The appellant was notified of this decision, with notification mailed to her address at [redacted]. In November 2007, the appellant was notified that her benefits were based on continuing medical expense deductions. While she was continuing to receive benefits, VA requested that she provide proof that she continued to pay her medical expenses by mailing receipts and bill summaries documenting all expenses. This notification was mailed to an address on [redacted]. In January 2008, VA wrote the appellant to inform her that as the requested information had not been provided, it was proposed that her VA pension be terminated effective June 1, 2006. This notification was also mailed to an address on [redacted]. In February 2008, the appellant submitted an Eligibility Verification report. In May 2008, VA wrote the appellant not only to acknowledge the receipt of the 2008 Eligibility Verification report, but also to inform her that they needed information on medical expenses paid for June 2006 through December 2006, January 2007 through May 2008, and June 2007 through December 2007. In a written statement received in July 2008, the appellant’s daughter/power-of-attorney wrote that the appellant lived with her on [redacted] and that she was providing her medical care. She also provided receipt of bills and statements regarding expenses dated in 2007. In another written communication mailed in July 2008, the RO indicated that it was terminating the appellant’s death pension benefits because the medical expenses provided did not include ones paid in 2006, and her income was in excess of the maximum allowable by law. In August 2008, the Debt Management Center sent a letter to the appellant informing her of the overpayment of $24,390.00 created when she was receiving pension benefits though her reported income was greater than the maximum allowable by law. The Board notes the record does not contain a copy of the Notice of Rights and Obligations form attached to the August 2008 letter. However, there is a well-established presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). Therefore, it is legally presumed that the Secretary properly discharged his official duties, including sending the appellant the "Notice of Rights and Obligations" in August 2008 and as referenced in the May 2014 decision from the Debt Management Center, which contained the information regarding the time limit to file a waiver of debt. Statements of nonreceipt, standing alone, are not the type of clear evidence to the contrary which would be sufficient to rebut the presumption of regularity. Jones v. West, 12 Vet. App. 90 (1999), Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Ashley v. Brown, 2 Vet. App. 62, 64 (1992). Again, review of each of these notification letters from VA, including the notification letter from the Debt Management Center, reflects that they were all mailed to the appellant at the address on [redacted], and none were returned as undeliverable. No additional correspondence was received from the appellant until April 2014, when the appellant filed a request for waiver of the overpayment of her special monthly pension benefits, more than 180 days after the August 2008 notification of the overpayment. As noted, pursuant to VA statute and regulation, the appellant 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 appellant or her representative 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. Communications from the appellant’s daughter confirm that the appellant lived at [redacted] from April 2006 until June 2007, and that she lived with her at the address on [redacted] until March 2009, at which time she moved into another nursing and rehabilitation center. Thus, there is no indication that the letters mailed in 2008 were sent to an incorrect address. The Board has considered the appellant’s contention, as noted in written statement and during her Board hearing, that VA and the Internal Revenue service were mailing notification letters to an incorrect address in Florida and that she was not properly notified of the debt. The appellant sent a letter from the IRS dated in November 2012 that was mailed to the appellant at an address in Florida. However, this communication was not from VA and does not establish that VA was mailing communication to the improper address during the relevant period. Rather, as noted above, the record reflects that the notification letters requesting medical expense documentation, informing the appellant that her pension benefits were to be terminated, and advising her of the amount of the debt and her rights regarding a waiver were all mailed to the address on [redacted]. None of these communications were returned as undeliverable. Moreover, given that the appellant replied to one of the communication letters in July 2008, it appears that she did receive the notification letters sent to the address on [redacted]. Under these circumstances, the Board must conclude that the appellant was properly notified of the debt and failed to timely file a request for waiver of the overpayment of special monthly death pension benefits with aid and attendance. Neither she nor her representative contends that the appellant filed a timely request for a waiver of an overpayment, and there is no indication in the record to suggest delay in his receipt of the notification of indebtedness. While the Board is sympathetic to the appellant and her financial circumstances and the validity of the debt, 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 April 2014, was not timely, and that, therefore, VA is constrained from considering the merits of the appellant's waiver request. The claim is denied. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel