Citation Nr: 21001584 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 17-31 022 DATE: January 11, 2021 ORDER 1. The challenge to the creation of an overpayment in the amount of $3,332.09 is denied. 2. The claim for a waiver of the debt arising from the overpayment in the amount of $3,332.09 is granted in part insofar that the debt is reduced to the amount of $1,586.71, and the portion of the debt in the amount of $1,745.38 is waived. FINDINGS OF FACT 1. The preponderance of the evidence establishes that the overpayment in the amount of $3,332.09 arose from the concurrent receipts of Department of Veterans Affairs (VA) disability compensation benefits and Department of Defense (DOD) disbursements for the periods of inactive duty for training (INACDUTRA) Unit Training Assemblies (UTAs) and active duty for training (ACDUTRA) that were executed during fiscal year (FY) 2015. 2. The preponderance of the evidence establishes that failure to make restitution as to the entire overpayment in the amount of $3,332.09 would result in an unfair gain, while a recoupment of $1,586.71, accompanied by a waiver of the amount of $1,745.38, would not. CONCLUSIONS OF LAW 1. An overpayment in the amount of $3,332.09 was properly created. 38 U.S.C. §§ 101, 1503, 1521, 1541, 5110, 5313; 38 C.F.R. §§ 3.21, 3.23, 3.271, 3.272; 3.700. 2. A waiver of the recoupment of the entire overpayment debt in the amount of $3,332.09 is contrary to the principles of equity and good conscience, while a recoupment of $1,586.71, accompanied by a waiver of the amount of $1,745.38, is not. 38 U.S.C. § 5302; 38 C.F.R. §§ 1.963, 1.965. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from August 2005 to November 2006, followed by Reserve and National Guard service. These matters come before the Board of Veterans’ Appeals (Board) on his appeal from a September 2016 decision of VA Regional Office (RO) and June 2017 decision of the Committee on Waivers and Compromises (COWC), which denied a waiver of the $3,543.65 overpayment debt charged to the Veteran based on his concurrent receipts of VA disability benefits and DOD military pay for UTA and ACDUTRA periods executed during FY 2015. In December 2019, the Board remanded these matters to the RO since the Veteran’s October 2016 Notice of Disagreement (NOD) asserted his recollection of executing about 30 to 34 UTAs and no ACDUTRA during FY 2015, while he was charged with an overpayment arising from 67 “training days” executed in FY 2015 and yielding the overpayment amount of $3,543.65. The Veteran requested an audit of his account, and the Board’s December 2019 decision directed such an audit. In June 2020, the RO associated the Veteran’s Defense Personnel Records Information Retrieval System (DPRIS) records with the claims file. The DPRIS records demonstrate that he executed 45 UTAs and 18 ACDUTRA periods during FY 2015, yielding a total of 63 overpayment days. Based on this information, the RO conducted an audit of the Veteran’s account and recalculated his debt down to $3,332.09. As relevant here, UTAs, commonly referred to as “drill weekends,” are a form of INACDUTRA. Since both INACDUTRA and ACDUTRA are compensated activities, the term “drill pay” refers to monetary benefits paid to veterans participating in UTAs. Further, because there are two paid UTA periods in a single calendar day, a single UTA period executed during half of a calendar day corresponds to a full calendar day of VA benefits for the purposes of calculating an overpayment. In sync, two UTA periods executed during a full calendar day correspond to two calendar days of VA benefits, and four UTA periods executed during two calendar days of a single weekend correspond to four calendar days of VA benefits. Accordingly, the Board cannot rule out that the Veteran’s lack of awareness of the fact that there were two paid UTA periods in a single full calendar day confused him and affected his calculation based on the Veteran’s recollection that he executed about 30 to 34 “days of training,” especially since the DRPIS records show that the Veteran’s 45 UTAs executed during FY 2015 arose from three half drill-days (each of which yielded a full calendar day for VA benefits purposes) and 22 full-drill-days (each of which yielded two calendar days for the purposes of calculating his VA benefits), Similarly, the Board cannot rule out that the Veteran might have recalled his 18 ACDUTRA periods as INACDUTRA. Therefore, while the Board is mindful that the equipoise standard is applicable to the inquiries conducted in connection with challenges to overpayment debts, and the Board is without a basis to question the sincerity of the Veteran’s belief that he executed 30 to 34 “days of training” during FY 2015, the Board is also without a basis to find that the DPRIS information is erroneous. Moreover, the Veteran submitted no statement suggesting that his DPRIS records contain an error. Therefore, the preponderance of the evidence demonstrates that the amount of his overpayment, arising from 63 VA benefits overpayment days and yielding the amount of $3,332.09, is correct. Accordingly, the Veteran’s challenge to the propriety of the creation of his overpayment, to include the validity of the amount of his overpayment debt, as downwardly adjusted, is denied. An overpayment debt is waived, and there is no recovery of overpayment if it is determined that recovery would be against equity and good conscience. 38 U.S.C. § 5302(a); 38 C.F.R. § 1.962. The equity analysis encompasses considerations such as whether recoupment of the debt would deprive the debtor or his/her family of basic necessities, such as food, shelter, and clothing, whether the recovery would nullify the objective for which the benefits were intended, whether the failure to make restitution would result in unfair gain to the debtor, whether the debtor has changed his/her position for the worse in reliance on the VA benefits to be offset or collected, whether the fault on the part of VA outweighs the fault of the debtor in creating the overpayment, etc. 38 U.S.C. § 5302; 38 C.F.R. § 1.965(a). In connection with the balance-of-fault consideration, the Board notes that veterans are eligible to receive VA disability compensation pay while in ACDUTRA or UNACDUTRA status. However, the concurrent receipt of military pay, to include ACDUTRA or UNACDUTRA pay (disbursed by the Defense Finance Accounting Service (DFAS), an accounting agency operating within the DOD) and disability compensation benefits distributed by VA is prohibited. Accordingly, a veteran who performs ACDUTRA or INACDUTRA, to include UTAs, is required to elect between military pay and his/her VA disability compensation and waive the benefit (s)he elects not to receive. 10 U.S.C. § 12316; 38 U.S.C. § 5304(c); 38 C.F.R. § 3.700(a)(1)(iii). Generally, veterans choose to receive ACDUTRA or INACDUTRA military pay instead of their VA disability compensation benefits because a military ACDUTRA or INACDUTRA pay is, typically, a greater financial benefit, regardless of the combined rating assigned for a veteran’s service connected disabilities. In the event a veteran participates in ACDUTRA and/or INACDUTRA without executing a waiver of his/her VA benefits, the veteran’s concurrent receipt of DFAS military pay and VA disability compensation benefits results in VA overpayment. Here, such an overpayment ensued as a result of the Veteran’s failure to execute a waiver of his VA benefits as to his ACDUTRA and UTAs. Therefore, the balance-of-fault consideration weighs against granting a waiver to the Veteran. Further, the record does not suggest that the Veteran changed his position for the worse in reliance on the stream of income ensuing from the overpayment. It follows that this consideration is inapposite to the inquiry at bar. The Veteran’s Financial Status Report (FSR) implicates the remaining waiver considerations. The FSR is pithy: it states that the Veteran’s wife’s income is zero, and it also states that his own income is zero. The latter is facially incorrect since the Veteran is in receipt of his VA disability compensation benefits. At the time when the Veteran applied for a waiver of his overpayment debt, the amount of his VA benefits was upwardly adjusted for his dependent wife and two minor children and yielded a total of $1,586.71 per month. Effective December 2019, the amount of the Veteran’s VA benefits, still upwardly adjusted for his wife and two minor children, was increased by $623.25, thus reaching $2,209.96. The FSR also indicates that the Veteran’s family has no assets of any kind and no cash savings. Further, the Veteran stated that his monthly family utility bill was $400. Although the Veteran did not itemize these expenses, the Board construes his statement as incorporating the costs associated with the use of electricity, cellular phones, TV, cable, internet, etc. The Board finds the combined amount of these expenses reasonable, given that the Veteran’s family consists of him, his wife, and his two sons who were in their pre-teens at the time when the Veteran executed the FSR. In addition, the FSR asserts that the Veteran pays $400 in rent or mortgage. Since the Veteran stated that he has no assets, the Board gathers that the Veteran referred to a monthly rent. The Board presumes that the Veteran’s statement of his monthly rent is correct. However, the Veteran also asserted that his monthly family food bill was $100. Given that there are four people in his family, and there are 30 days (or 31 days) in a month, the Veteran’s statement indicates that each person in his family is being fed on 83 cents per day or less. Accordingly, the Board gathers that the Veteran understated his family’s monthly food expenses and, therefore, turns to his monthly amount of VA benefits for an approximation of his family’s monthly food expense. Toward this end, the Board presumes that, at the time when the Veteran submitted his FSR, his family’s monthly food expenses were the entire difference between his monthly VA disability compensation benefits and the combined costs of rent and utilities, i.e., $786.71. Divided by four persons, and then divided by 30 days, that amount yields $6.55 per person per day, i.e., a figure that is very modest. The Board, however, notes that, at the instant juncture, the Veteran’s monthly VA disability benefits have been increased by $623.25, hence adding about $5.19 per person per day. In light of the aforesaid increase, the current amount available for food is $11.74 per person. While such an amount is sufficient and might even slightly exceed basic necessities in terms of the Veteran’s family’s food bill, the Board acknowledges that the FSR was silent in terms of other basic necessities, such as clothing and out-of-pocket necessary medical expenses. Correspondingly, a portion of the $11.74 allowance per person per day is likely to be spent on these basic life necessities. Assessing these concerns in toto, the Board finds that the Veteran’s family’s monthly expenses are likely to exceed or, at best, be equal to his family’s monthly income. It follows that a withholding from his monthly VA disability compensation benefits would deprive the Veteran and his family from basic necessities of life. Further, for the same set of reasons, the Board finds that a withholding from his monthly VA disability compensation benefits would effectively nullify the objectives of his VA disability compensation. With that, the Board turns to the unjust-enrichment consideration of the waiver analysis. The Board assesses this consideration in light of the overarching “equity and good conscience” waiver standard, which implies that the facts and circumstances of a case indicate the need for reasonableness and moderation in the exercise of the Government’s rights, i.e., the decision reached should not be unduly favorable or adverse to either side. Simply put, the phrase “equity and good conscience” means arriving at a decision that is fair to both, the debtor who is seeking a waiver and the Government. Here, while the Veteran’s family’s financial circumstances appear tight, this fact is balanced – but by no means eliminated – by the fact that his debt arose solely from the Veteran’s failure to notify VA of his ACDUTRA and UTA service. Further, the record shows that the Veteran received and made use of the duplicative military pay disbursed by DFAS for his ACDUTRA and UTAs in addition to receiving his VA disability compensation benefits for the same periods of time. Accordingly, a full waiver of the Veteran’s overpayment debt would not be equitable to the Government, while a partial waiver of his debt appears warranted. Turning to the issue of the amount of such a partial waiver, the Board notes that, in May 2016, an amount of $1,586.71 was withheld from the Veteran’s VA benefits as a partial recoupment of his overpayment debt. The recoupment, therefore, left the amount of $1,745.38 as an outstanding portion of the Veteran’s debt. Accordingly, the Board finds that a waiver of this outstanding amount is fair to the Veteran and the Government. It follows that the Veteran’s waiver claim is granted insofar that the portion of his overpayment debt in the amount of $1,745.38 is waived. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anna Kapellan, 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.