Citation Nr: 20047083 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 17-45 634 DATE: July 14, 2020 ORDER As the debt in the amount of $6,981.16 for overpayment of education benefits under Chapter 33, Title 38, United States Code, (known as the Post-9/11 GI Bill) benefits was properly created, the appeal as to that matter is denied. REMANDED A waiver of recovery of an overpayment in the amount of $6,981.16 for education benefits under Chapter 33, Title 38, United States Code, known as the Post-9/11 GI Bill.   FINDING OF FACT 1. For the period from October 3, 2016, to December 17, 2016, the Veteran was enrolled full time for 13 credit hours at the Art Institute of San Antonio. 2. The Veteran withdrew from the 13-credit hour enrollment, effective October 24, 2016. 3. The Veteran’s October 24, 2016, withdrawal was his first instance of withdrawal and a 6-credit hour exclusion due to mitigating circumstances was granted by the RO for the period between October 3, 2016 to October 24, 2016. 4. After the applicable adjustments and exceptions, the Veteran’s debt in the amount of $6,981.16 was validly created. CONCLUSION OF LAW As an overpayment of educational assistance benefits under Chapter 33 in the amount of $6,981.16 was properly created, the appeal to this matter must be denied. 38 U.S.C. § 3685; 38 C.F.R. § 1.911, 21.9635 (b), 21.9640. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1994 to October 2014. The case is on appeal from a December 2016 VA decision that created a debt of overpayment for education benefits. In a May 2019 decision, the Board remanded the case for additional development. Specifically, the Board requested from the RO to contact the certifying official at the Art Institute of San Antonio to determine the exact date the Veteran withdrew from classes during the October 2016 to December 2016 term. After completion of the requested development, the RO issued a supplemental statement of the case (SSOC) in February 2020. The matter was thereafter returned to the Board. The Board is satisfied with the actions taken by the RO on remand. The terms of the May 2019 remand have been complied with. See Stegall v. West, 11 Vet. App. 268, 270 (1998). Accordingly, the Board will proceed with adjudication of the appeal. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Whether the amount of a debt of $6981.16, for the overpayment of education benefits under Chapter 33 (Post 9/11 GI Bill), is proper. Validity of the Debt Initially, the Board notes that a debt, or overpayment, is created when VA concludes that a monetary payment was made to a claimant in excess of what should have been paid. 38 U.S.C. § 3685. Particular to this case, the overpayment of education benefits at issue involves payments under the Post-9/11 GI Bill (Chapter 33). The specific statutory and regulatory provisions governing Chapter 33 benefits, to include payment and discontinuation, are found under 38 U.S.C. §§ 3301 to 3327 and 38 C.F.R. §§ 21.9500 to 21.9770. As previously noted, in its May 2019 decision, the Board remanded the present matter to request from the certifying official at the Art Institute of San Antonio the exact date the Veteran withdrew from classes during the October 2016 to December 2016 term. In September 2019, the Art Institute certified that the Veteran officially withdrew from enrollment on October 24, 2016. The evidence of record reflects that the Veteran had enrolled in 13 credit hours at the Art Institute in San Antonio for the October 2016 to December 2016 term. Shortly after the beginning of the term, the Veteran withdrew from enrollment due to a family emergency effective October 19, 2016. The Veteran’s withdrawal after the school’s drop/add period created the following debts: (1) $6,644.00 for tuition and fees; (2) $291.67 for books and supplies; and (3) $3,213.20 for housing allowance corresponding. See December 14, 2016 VA Change of Enrollment notification letter. The foregoing represented an overpayment of education benefits in the amount of $10,148.87. Pertaining to effective dates of a reduction or discontinuance of educational assistance, 38 C.F.R. § 21.9635(b) provides that “in the first instance of a withdrawal from a course or courses for which the eligible individual received educational assistance, VA will consider mitigating circumstances to exist with respect to the withdrawal of a course or courses totaling no more than six semester hours or the equivalent.” 38 C.F.R. § 21.9635(b). In other words, veterans who withdraw for the first time from an educational course paid for using Post-9/11 GI Bill benefits are entitled to receive one-time forgiveness of educational debt of up to 6 total credit hours without being required to present evidence of mitigating circumstances in order to avoid being required to repay the total overpayment created by this withdrawal. In light of the above and given the particular mitigating circumstances of the case, the RO granted a one-time 6-hour credit exclusion from repayment specifically for the period between October 3, 2016 and October 24, 2016. Accordingly, VA restored prorated tuition fees, books and supplies and housing allowance benefits which reduced his total overpayment from $10,148.87 to $7,701.10. See August 2017 VA letter; see also August 2017 SOC. Pursuant to the Board’s May 2019 remand, further development was conducted specifically to seek clarification as to the Veteran’s effective date of withdrawal. In a subsequent February 2020 SSOC and following confirmation that the Veteran’s official date of withdrawal was October 24, 2016, the RO determined that additional adjustments were warranted under 38 C.F.R. § 21.9695. As a result, credits in the amounts of $442.94 and $277.00 were applied to his debt. This resulted in a Post 9/11 GI Bill debt of $6,981.16. The Board has considered the arguments advanced by the Veteran, particularly in regard to the mitigating circumstances that forced him to withdraw from enrollment during the 2016 fall semester and for which he should not be responsible for any overpayment as VA determined it was not his fault. See August 2017 VA Form 9. The Board understands that the Veteran may believe that the debt is not valid as the RO determined it was not the Veteran’s fault. However, it is clear that this finding was with respect to whether or not the one-time forgiveness of educational debt set forth in 38 C.F.R. § 21.9635(b) was applicable to the special circumstances of his case. Here, the RO determined that such mitigating circumstances existed, and all applicable adjustments in the Veteran’s favor were made, ultimately resulting in the decrease of his debt from $10,148.87 to $6,981.16. The Board is bound by the laws and regulations that apply to Veterans’ claims. 38 U.S.C. § 7104(c); 38 C.F.R. §§ 19.5, 20.101(a). Those laws and regulations reflect that based on the evidence of record, there is no basis to declare invalid the debt nor the amount. While a portion of the overpayment equivalent to 6-hour credit, in addition to the prorated amounts for housing allowance and books and supplies benefits for the period from October 3, 2016 to December 17, 2016 were excluded from repayment, the Veteran is still responsible for the remainder amount, in this case $6,981.16. Accordingly, upon consideration of the evidence of record, to include the Veteran’s lay statements, the Board finds that the Veteran’s withdrawal after the school’s drop/add period resulted in an overpayment in the amount of $6,981.16. That is, after the one-time exclusion of 6 hour-credit granted due to mitigating circumstances, plus the prorated amounts discussed above pertaining to housing allowance and books and supplies. Thus, the debt in the amount of $6,981.16 was properly created. REASONS FOR REMAND A waiver of recovery of an overpayment in the amount of $6,981.16 for education benefits under Chapter 33, Title 38, United States Code, known as the Post-9/11 GI Bill. At the outset, the Board notes that every overpayment case potentially has three issues: (1) the validity of debt; (2) the amount of debt; and (3) waiver of the debt. Here, the validity and amount aspects of the debt have been addressed and found to be valid and correct. As such, those two issues are no longer in dispute. However, there is still a remaining question regarding the waiver of the debt. Following the November 2016 notification of the debt, the Veteran submitted a request for waiver. See December 20, 2016 Statement in Support of Claim. In March 2017, the Debt Management Center (DMC) denied the Veteran’s request for waiver. In July 2017, the Veteran submitted several documents contending the validity of the debt, the amount of the debt, and a statement suggesting reconsideration of the denial of his waiver request given the mitigating circumstances surrounding his case. The RO liberally construed the Veteran’s letter as a Notice of Disagreement (NOD). See August 2017 SOC. Although the RO addressed the issues of the validity and amount of his debt, the Board notes that the Veteran has not yet been provided with a related SOC with respect to the “reconsideration” requested regarding the DMC’s denial of his waiver request. Accordingly, the Board finds that this claim must be remanded for reconsideration and issuance of an SOC if the claim is not granted. See Manlincon v. West, 12 Vet. App. 238, 240-41(1999); 38 C.F.R. §§ 19.9(c), 19.29. This matter is REMANDED for the following action: Reconsider issue of waiver of the $6,981.16 debt. If the benefit sought is not granted in full, issue an SOC. Then, send the claims to the Board if a timely substantive appeal is submitted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William Pagan, Associate 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.