Citation Nr: 20007342 Decision Date: 01/29/20 Archive Date: 01/28/20 DOCKET NO. 18-53 026A DATE: January 29, 2020 ORDER The request for a waiver of an overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $39,212.36 was timely filed; to this extent only, the appeal is granted. REMANDED Entitlement to a waiver of an overpayment of VA compensation benefits in the amount of $39,212.36 is remanded. FINDINGS OF FACT 1. In April 2017, the Veteran was advised of the amount of the debt at issue, 39,212.36, and stated that the Veteran could request a waiver of the recovery of the debt within 180 days. 2. In July 2018, the Veteran requested a waiver of the recovery of the debt. CONCLUSION OF LAW The Veteran’s request for a waiver of recovery of the overpayment of compensation benefits in the amount of $39,212.36 is accepted as timely. 38 U.S.C. § 5302 (a); 38 C.F.R. § 1.963 (b)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran was receiving VA disability compensation benefit, but he returned to active duty in July 2015. He maintains that he notified VA via the telephone to stop his compensation benefits. 38 U.S.C. § 5304(c) prohibits the receipt of VA disability compensation benefits for any period for which the person receives active service pay. See 38 C.F.R. §§ 3.654, 3.700. This includes active duty pay, drill, and active duty for training payments, and inactive duty training payments made to Reservists and members of the National Guard. Reservists may waive their pension, compensation, or retirement pay for periods of field training, instruction, other duty, or drills. There is no official record of the telephone contact. In April 2017, VA terminated the Veteran’s compensation benefits retroactively to July 16, 2015, since the Veteran had returned to active duty. The Veteran was notified in April 2017 that this action resulted in the creation of an overpayment of $39,212.36. The Veteran did not request a waiver of the recovery of the overpayment until July 2018. In August 2018, the request for a waiver of the recovery of the overpayment was denied on the basis that the request was not received in a timely manner. Under applicable criteria, a request for waiver of an indebtedness shall only be considered if made within 180 days following the date of a notice of indebtedness to the debtor. The 180-day period may be extended if the individual requesting waiver demonstrates, as a result of error by either the 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. If the debtor does substantiate there was such a delay in the receipt of the notice of indebtedness, the 180-day period shall be computed from the date of the debtor’s actual receipt of the notice of indebtedness. 38 U.S.C. § 5302 (a); 38 C.F.R. § 1.963 (b)(2). The Veteran contends he did not receive the VA notification letter. The Veteran explained that he had been called back up to active duty. The record reflects that the Veteran was on active duty, in pertinent part, from March 2009 to June 2018. The Board finds that this combat-decorated Veteran is credible in his report that he did not timely receive his notification letter due to other circumstances beyond his control. As such, the Board accepts the Veteran’s request for a waiver as timely. The Board notes that this debt has already apparently been recouped. A subsequent debt of $24,155.93, also created due to his return to active duty, has been waived. This decision does not affect that waiver grant. REASONS FOR REMAND Waiver of the Recovery of the Debt of $39,212.36 is remanded. Due to the Board’s above grant, the issue of waiver of recovery of the overpayment of $39,212.36 at issue must now be adjudicated by the RO. The matter is REMANDED for the following action: 1. Obtain an updated complete and current financial status report from the Veteran. 2. Then, adjudicate the issue of waiver of recovery of the overpayment of VA compensation benefits in the amount of $39,212.36. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Connolly, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.