Citation Nr: 21001830 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 14-31 615A DATE: January 11, 2021 ORDER The Veteran’s claim for waiver of recovery of an overpayment of VA education benefits was not untimely. To this extent, the appeal is granted. REMANDED Entitlement to a waiver of recovery of an overpayment of VA education benefits is remanded. FINDINGS OF FACT 1. In November 2009, the Veteran informed VA that his mailing address had permanently changed. 2. In May 2011, VA mailed notice to the Veteran that he had been overpaid for VA education benefits; this notice was sent to his previous address. 3. The Veteran did not respond to the May 2011 notice until February 2013, well beyond the 180-day deadline for requesting waiver. 4. The Veteran’s inability to submit a request for waiver of overpayment of VA education benefits within the required 180 days was due solely to VA error. CONCLUSION OF LAW The Veteran’s request for waiver of recovery of an overpayment of VA education benefits was timely filed. 38 U.S.C. § 5302 (a); 38 C.F.R. § 1.963 (b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1998 to December 2002 and in the United States Coast Guard from May to June 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the undersigned at a videoconference hearing held in January 2021. The Board is proceeding with this decision and remand prior to a transcript of the hearing being produced and associated with the claims file. However, given the fully favorable decision of the issue discussed at that hearing, it is harmless error for the Board to proceed here. In addition, the Board notes that the Veteran inquired as to whether the time to extend his education benefits could be extended, based on his financial inability to continue attending school, as a result of his repayment of this debt. As the waiver of the overpayment has not been decided yet on the substance of that matter, the Board cannot make a determination at this time, and the Veteran is encouraged to pursue this once the decision is made regarding the waiver of overpayment. In the decision on appeal, the Veteran’s claim of entitlement to waiver of overpayment of VA education benefits was denied based on the determination that his request for a waiver of the overpayment was untimely. He asserts that VA mailed notice of his overpayment, and his right to request a waiver, to a previous address, despite the fact that he had alerted VA to the change in residence. Thus, he was unaware of his right to request a waiver of that debt until after the 180-day period had elapsed. 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 (b); see also 38 U.S.C. § 5302 (a). For the purposes of this analysis, “notice” means written notice sent to a claimant at his or her latest address of record. See 38 C.F.R. § 3.1 (q). To determine whether any waiver request by the Veteran was timely, the Board must determine when the Veteran was properly provided notice of the indebtedness. The record shows that, prior to November 2009, the Veteran was listed in VA records as living on a street hereinafter referred to as “B.M. Way.” In November 2009, he submitted a VA Form 20-572, Request for Change of Address/Cancellation of Direct Deposit, in which he alerted VA that his address had permanently changed from B.M. Way to a street hereinafter referred to as “M.Z. Road.” On February 22 and June 25, 2010, the RO notified the Veteran that an overpayment was created in regard to his education benefits. Despite the fact that the Veteran had informed VA that he now lived on M.Z. Road, these notices were mailed to the address on B.M. Way. Subsequently, on May 2, 2011, the Veteran was mailed a letter in which he was informed of the overpayment of education benefits due to a reduction in his attendance. This letter was also mailed to the address on B.M. Way. In February 2013, the Veteran requested a waiver of overpayment of his VA education benefits based on the fact that his reduced class attendance was due to family and work circumstances out of his control. As noted above, his request for a waiver was denied due to the timeliness of the request. To determine whether the Veteran’s request for a waiver of recovery of the overpayment was timely, the Board must determine whether notice to the Veteran of the pertinent determination was properly accomplished more than 180 days prior to the request for waiver. In doing so, the Board recognizes that the RO made an effort to notify the Veteran of his debt on occasions in 2010 and 2011. While the record does not show the notices to be returned as undeliverable, it is clear that the Veteran informed VA in 2009 that he no longer lived at the address on B.M Way and that all correspondence should be sent to M.Z. Road. This was clearly not accomplished, as all notice of the debt were sent to the Veteran at the address on B.M. Way. A claimant has a responsibility to keep VA informed of changes of address. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Here, the Veteran clearly did so. Despite this fact, notice of the overpayment of education benefits was mailed, on multiple occasions, to his former address. This is VA error. Thus, the Board finds the 180-day period is to be extended, as the record shows that the Veteran’s delayed receipt of such notice was the fault of VA. 38 C.F.R. § 1.963 (b)(2) (providing that the 180-day period for an application for waiver may be extended if the individual requesting waiver demonstrates that, as a result of error by VA, 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). The timeliness of the Veteran’s waiver request must therefore be conceded. To that extent, the appeal is allowed, and the request is to be considered timely. REASONS FOR REMAND As noted above, the Veteran’s request for a waiver of recovery of the overpayment debt has been considered by the RO but denied because the request was not timely. Because the Board concludes that the Veteran’s request should be deemed timely, adjudication of the request for waiver must therefore proceed to consideration of the merits. The matters are REMANDED for the following action: The Veteran should be asked to submit a current financial status report, VA Form 5655. Once received, the RO should adjudicate the threshold issue of whether the overpayment of VA education benefits is valid, and waiver is warranted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeremy J. Olsen, 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.