Citation Nr: 19106919 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 16-44 531 DATE: January 29, 2019 ORDER The appellant’s application for a waiver of recovery of an overpayment, in the amount of $121,192.29, was not timely filed and is denied. FINDINGS OF FACT 1. In an August 8, 2015 letter, the appellant was notified that she had an overpayment debt in the amount of $121,192.2. 2. The appellant’s request for a waiver of recovery of the overpayment was received on March 1, 2016. CONCLUSION OF LAW The application for waiver of recovery of an overpayment was not timely filed. 38 U.S.C. § 5302 (2012); 38 C.F.R. § 1.963 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION Entitlement to waiver of recovery of an overpayment of Dependency and Indemnity Compensation (DIC) benefits in the amount of $121,192.29. Under the applicable regulations, 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 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 C.F.R. § 1.963; see also 38 U.S.C. § 5302 (2012). The VA Regional Office (RO) in Saint Paul, Minnesota sent the appellant an April 2015 letter notifying her that VA was proposing to stop payment of pension benefits effective May 1, 1998 based on information from her records concerning her marital status. In June 2015, the appellant submitted a Marital Status Questionnaire, VA Form 21-0537, informing VA that she had remarried in December 2006. A July 2015 letter informed the appellant that her DIC benefit was being terminated effective December 1, 2006. The appellant was informed that because of this change, she had received an overpayment of benefits. She was informed that she had the right to appeal the decision, with regard to the termination of benefits. An August 8, 2015 letter informed the appellant of the overpayment indebtedness of $121,192.28.00 and the right to request a waiver of recovery of the indebtedness. The appellant’s request for waiver of overpayment was received on March 1, 2016 along with a Financial Status Report. No documents which could be construed as a request for waiver were submitted prior March 2016. The Board finds, therefore, that the request for waiver was made more than 180 days following the date of notice of the indebtedness and was not timely. The record shows that the August 2015 notice of overpayment was sent to the appellant at her current address of record and she has not submitted evidence showing that, as a result of an error by either VA or the postal authorities, or due to other circumstances beyond her control, there was a delay in receipt of the August 2015 letter. The appellant contends, in her September 2016 substantive appeal, that she was sent a December 2015 letter, informing her that she had 60 days to pay the debt in full or establish a payment plan. She stated that she received another letter on February 10, 2016 indicating that her case had been referred to the Department of Treasury. She contacted VA on February 27, 2016 and was told that it was too late to do anything, and her case had already been transferred. She contacted VA again a few days later, and was given information and instructions which she followed to the letter. (Continued on the next page)   While the Board is sympathetic to the appellant’s circumstances, her statement does not show that she did not receive the August 2015 notice of overpayment, which included information regarding her right to request a waiver. While the appellant may not have been aware of the timeline for filing a waver, this timeline for filing is set by statute. In this case, the request for a waiver was received more than 180 days following the date of notice of the indebtedness. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christine C. Kung