Citation Nr: 20072005 Decision Date: 11/06/20 Archive Date: 11/06/20 DOCKET NO. 18-23 017A DATE: November 6, 2020 ORDER An overpayment of educational assistance benefits under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) in the amount of $11,708.53 was properly created and is valid. FINDING OF FACT A debt in the amount of $11,708.53 was properly created. CONCLUSION OF LAW VA followed all due process protections in the identification of an overpayment of educational assistance benefits debt under Chapter 33 in the amount of $11,708.53. 38 C.F.R. §§ 21.4135, 21.4136, 21.7135 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from February 2001 to April 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and her spouse testified before the undersigned Veterans Law Judge at a February 2020 videoconference hearing. A transcript of this hearing is of record. In March 2020, the Board remanded the appeal for additional evidentiary development. In December 2017, the VA Debt Management Center (DMC) sent the Veteran three separate demand letters informing her of the amounts of the overpayment and her rights to appeal and to seek a waiver of her debt. The Veteran did not file a request for a waiver of overpayment. The issue of entitlement to a waiver of recovery of overpayment is not before the Board. Whether an overpayment of educational assistance benefits under the Post-9/11 GI Bill in the amount of $11,708.53 was properly created The Veteran is challenging the validity of the debt by asserting that her withdrawal from her enrollment at a vocational school for the academic term beginning in May 2017 was due to mitigating circumstances. In October 2017, the Veteran’s husband, who is serving on active military duty, received orders to report to another posting in February 2018. Because of those orders, the Veteran had to prepare to relocate her family from Washington to North Carolina. VA shall pay to each individual entitled to basic educational assistance who is pursuing an approved program of education, an educational assistance allowance to help meet in part, the expenses of such individual subsistence, tuition, fees, supplies, books, equipment and other educational costs. See 38 U.S.C. §§ 3002, 3014(a) (2018); 38 C.F.R. §§ 21.7120, 21.7130 (2019). An eligible claimant is entitled to a monthly benefit for periods of time during which he or she is enrolled in, and satisfactorily pursuing, an approved program of education. See 38 U.S.C. § 3014 (2018); 38 C.F.R. § 21.7140 (2019). 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 (2018); 38 C.F.R. § 1.962 (2019). Generally, if an appellant withdraws from a term for which education benefits had been paid to them or on their behalf repayment of these benefits are due to VA for the entire term. In this case, the record contains letters from the RO dated April 2017 and June 2017 that notify the Veteran that VA does not generally pay for courses a Veteran withdraws from, and that the Veteran is responsible for all debts resulting from reductions or terminations of enrollment even if the payment was submitted directly to the school on behalf of the Veteran. If mitigating circumstances are found, VA will create the overpayment only for the period of the term the appellant did not attend. 38 C.F.R. § 21.9635 (2019). Mitigating circumstances means circumstances beyond the individual's control that prevent him or her from continuously pursuing a program of education. 38 C.F.R. § 21.9505 (2019). Examples of qualifying mitigating circumstances include: illness of the individual or a member of his or her family; family death; an unavoidable geographical transfer resulting from the individual's employment; an unavoidable change in employment conditions; immediate family or financial obligations beyond the individual's control that require them to suspend pursuit of the program of education in order to obtain employment; discontinuance of the course by the school; unanticipated active duty for training; or unanticipated child-care difficulties. 38 C.F.R. § 21.7020 (2019). At her February 2020 Board hearing, the Veteran testified that her school informed her that if she withdrew from her academic term before November 1, 2017, she would not incur any debts to the school. The Veteran withdrew from her academic term on October 25, 2017. She said she received a refund from the school in the amount of $5,000. She said that she did not return the money to VA, but, instead, due to financial constraints during her family’s relocation, she kept the money. However, the Veteran said that she knew that she was responsible for repaying that $5,000 back to VA. She disputes that any further money (i.e., the remaining $6,708.53) should be repaid to VA, since she was forced to withdraw from her academic term when her husband was ordered to active duty. See May 2018 VA Form 9 and February 2020 Board hearing transcript. In its March 2020 Remand, the Board instructed the RO to provide a detailed, yet straightforward accounting showing how the total overpayment debt was calculated. Subsequently, in a May 2020 Supplemental Statement of the Case, the RO provided a detailed accounting by first stating that VA paid the following: (1) $19,000 in tuition/fees for the period from May 9, 2017 through June 5, 2018; (2) $1,070.70 for books and supplies for the same period; and (3) $9,938.20 for housing allowance from May 9 to October 31, 2017. The RO calculated the amount owed for tuition by dividing the cost of tuition by the total number of days of the enrollment period (394), and then multiplying that number by the number of days the Veteran attended prior to withdrawal (170). Thus, the RO determined that a total of $8,198.87 was not owed for the period attended from May 9 to October 25, 2017, and that the remainder ($10,801.03) was the Veteran’s debt owed to VA. The RO then calculated the amount owed for books and supplies by pro-rating the amount paid per month ($83) by the number of days actually attended, and found that the Veteran was due $462.03 in books/supplies from May 9 to October 25, 2017. Subtracting that number from the amount paid resulted in the remainder ($608.67) being owed by the Veteran to VA. Finally, the RO calculated the amount owed for housing by multiplying the monthly rate of housing allowance ($1,668 a month prorated for May 6 through July 31, and $1,793 a month for August through October 31) for a total of $9938.20, and subtracted the amount owed to Veteran ($9638.37 for housing from May 6 through October 25), resulting in $298.83 being owed to VA. Thus, the RO’s calculations reflect an overpayment amount of $11,708.53 ($10,801.03 + $608.67+ $298.83). This overpayment amount does not include any payment provided by VA for the tuition, books and supplies, and housing allowance paid through October 25, 2017. As noted above, if mitigating circumstances are found, VA will create the overpayment only for the period of the term the appellant did not attend. 38 C.F.R. § 21.9635 (2019). The detailed accounting provided by the RO indicates that the period from October 26, 2017, through June 4, 2018, is not included in the overpayment amount. Thus, the record reflects that the RO took the Veteran’s mitigating circumstances into consideration when calculating the debt. The Board therefore finds that the creation of the debt is valid. The Board has considered the Veteran’s testimony indicating that she received incorrect information from her school. However, VA is not bound by erroneous advice dispensed by educational institutions. Rather, the Board is bound to follow VA's statutes and regulations and, under those statutes and regulations, has no authority to grant benefits on an equitable basis. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (stating that even where VA misinforms a veteran regarding eligibility for benefits, the doctrine of equitable estoppel cannot be used to grant monetary benefits not authorized by statute), aff'd 86 F.3d 1178 (Fed. Cir. 1996). The appeal is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Roya Bahrami, 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.