Citation Nr: 21003830 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-26 975 DATE: January 22, 2021 ORDER The request for waiver of indebtedness resulting from 38 U.S.C. Chapter 33 benefits in the amount of $14,683.92 was not timely filed; the appeal is denied. FINDING OF FACT VA received the Veteran’s December 2012 request for a waiver of his Chapter 33 education debts more than 180 days after the March 2011 notification of the debt. CONCLUSION OF LAW The request for waiver of indebtedness resulting from 38 U.S.C. Chapter 33 benefits in the amount of $14,683.92 was not timely filed. 38 U.S.C. § 5302; 38 C.F.R. § 1.963. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army Reserves from July 2005 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) from a March 2011 decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In his January 2016 formal appeal (VA Form 9), the Veteran requested a hearing before a member of the Board in Washington, D.C. That hearing was scheduled for November 2020, but the Veteran failed to report. As such, the request for a Board hearing is deemed withdrawn. 38 C.F.R. § 20.704 (d). The request for waiver of indebtedness resulting from 38 U.S.C. Chapter 33 benefits in the amount of $14,683.92 was not timely filed; the appeal is denied. The Veteran is seeking a waiver of indebtedness resulting from 38 U.S.C. Chapter 33 benefits in the amount of $14,683.92. An overpayment is created when VA determines that an individual has received payments in excess of the amount due or to which he is entitled. 38 C.F.R. § 1.962. The debtor may challenge the validity or amount of the debt owed and may apply for a waiver of a debt found to be valid. 38 C.F.R. §§ 1.911 (c), 1.963. In this case however, the threshold issue is whether the Veteran’s request for waiver of indebtedness was filed in a timely manner. Generally, a request for waiver of indebtedness shall only be considered if made within 180 days following the date of the notice of indebtedness issued to the debtor by VA. See 38 C.F.R. § 1.963. 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 U.S.C. § 5302; 38 C.F.R. § 1.963 (b). On March 26, 2011, the RO mailed the Veteran notification of an overpayment of Chapter 33 educational benefits in the amount of $17,654.22, noting that the Veteran was not eligible for education benefits under Chapter 33 but was eligible under the Montgomery GI Bill-Selected Reserves (Chapter 1606). VA paid the Veteran under Chapter 1606 and reduced the amount owed under the Post 9/11 GI Bill to $13,067.05. In April 2011, the VA debt management center mailed the Veteran a letter which stated that the Veteran owed $14,683.92, and informed the Veteran of the right to dispute the debt or request a waiver. In December 2012, the Veteran submitted a financial status report and indicated that he intended to file bankruptcy and sought a waiver of a $10,229.85 debt. In a January 2013 Decision on Waiver of Indebtedness, VA denied the Veteran’s request because the 180-day period to request a waiver had passed. In his January 2016 formal appeal, the Veteran stated that VA had violated the Fair Credit Reporting Act in creating the debt, and he requested that VA remove all negative entries on his credit file. The Veteran did not submit any arguments in support of a waiver of debt, nor did he contest the validity of the debt. The Veteran’s December 2012 request for a waiver was not received within 180 days of March 26, 2011, and thus there is no way to find that receipt of the Veteran's request was timely. VA’s ability to address whether a waiver is warranted is predicated on a timely filed waiver request. See Narron v. West, 13 Vet. App. 223 (1999). The Board is without authority to grant relief on an equitable basis and instead is constrained to follow the specific provisions of law. See 38 U.S.C. § 7104 (2018); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Here, the law specifically requires that an individual must submit a timely request for a waiver and the Veteran's request was not timely. (Continued on the next page)   As the law is dispositive in this case, the claim must be denied based on a lack of legal entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). April Maddox Acting 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.