Citation Nr: 21062876 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 09-23 476A DATE: October 12, 2021 ORDER The overpayment of Department of Veterans Affairs (VA) pension benefits in the amount of $9,551.00 was properly created; the appeal as to the debt's validity is denied. The request for a waiver of an overpayment of VA pension benefits in the amount of $9,551.00 was timely filed; to this extent only, the appeal is granted. REMANDED Entitlement to waiver of recovery of overpayment of VA pension benefits in the amount of $9,551 is remanded. FINDINGS OF FACT 1. From August 1, 2005 to June 30, 2006, the Veteran was receiving VA pension benefits at a time the evidence shows his income was excessive for pension benefits. 2. The retroactive termination of pension benefits from August 1, 2005 to June 30, 2006 resulted in a valid overpayment in the amount of $9,551.00. 3. VA has indicated the Veteran was notified of the $9,551.00 debt on September 3, 2008; however, VA cannot locate a copy of any September 3, 2008 communication to the Veteran. 4. The record is unclear as to when, or if, the Veteran received the notice of $9,551.00 debt. CONCLUSIONS OF LAW 1. An overpayment of $9,551.00 in VA pension benefits was properly created. 38 U.S.C. §§ 1501-1503, 1513, 1521, 1522; 38 C.F.R. §§ 3.3 (a)(3), 3.21, 3.23, 3.271, 3.272. 2. The Veteran's request for a waiver of recovery of the overpayment of VA pension benefits in the amount of $9,551.00 is timely. 38 U.S.C. § 5302(a); 38 C.F.R. § 1.963(b)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the United States Army from July 1973 to July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 determination by the VA Pension Management Center (PMC) to retroactively terminate the Veteran's pension benefits effective August 1, 2005 through June 30, 2006, which created the $9,551.00 debt at issue. This appeal is also from a March 2010 decision by the VA Debt Management Center (DMC) to deny the Veteran's request for a waiver of the debt at issue on the basis that it was not filed within the 180-day time limit for filing waiver requests. The Veteran appealed both the validity of this debt, as well as the denial of his request for waiver. The Board notes that additional debt was created for a time period subsequent to June 30, 2006, related to the Veteran's receipt of Social Security Administration benefits. The SSA debt was previously adjudicated by the Board and is no longer on appeal. In August 2014, the Veteran provided testimony before the undersigned Veterans Law Judge at a Board videoconference hearing. Following the hearing, the Board remanded the matter on appeal in October 2014 and again in September 2020. While the Board recognizes not all documents sought on appeal were able to be obtained, the Agency of Original Jurisdiction (AOJ) made reasonable attempts to achieve the remand directives. The Board finds the prior remand directives have been substantially complied with such that additional remand is not necessary. Stegall v. West, 11 Vet. App. 268 (1998). Debt Validity Nonservice-connected improved pension is available to a Veteran of a period of war who meets statutorily-defined service, net worth, and annual income requirements; and who is permanently and totally disabled from nonservice-connected disability not the result of willful misconduct, or who is 65 years of age or older. 38 U.S.C. §§ 1501-1503, 1513, 1521, 1522; 38 C.F.R. §§ 3.3(a)(3), 3.23. The purpose of VA pension benefits is to provide a subsistence income for Veterans of a period of war who are totally disabled and who are otherwise unable to maintain a basic, minimal income level. Recipients are required to report any changes in income and number or status of their dependents in a timely fashion. 38 U.S.C. §§ 1521, 1522. In determining annual income for pension purposes, all payments of any kind or from any source, which is received by anyone in the recipient's household, are generally counted as income during the 12-month annualization period in which received. Only those amounts that are listed in 38 C.F.R. § 3.272 may be excluded from countable income for determining entitlement to improved pension. 38 U.S.C.§ 1503; 38 C.F.R. §§ 3.271, 3.272. An October 2005 rating decision notified the Veteran that the RO found sufficient disability present to warrant a grant of nonservice-connected pension effective June 1, 2005. The Veteran was notified of this award by way of a November 2005 letter. This letter informed him that his $12,000 per year earnings from June 1, 2005 to August 1, 2005 were over the $10,162 maximum allowable for collecting pension benefits, and that the monetary award would begin August 1, 2005, because of the Veteran's report that as of this date he had no income. He was also informed of the requirement to notify VA right away if there was any change in his income. Enclosed with the notification letter was a VA Form 21-8768, which also advised him that he was obligated to provide prompt notice of any change in income or net worth or dependency status and that a failure to provide this would result in the creation of an overpayment, which would be subject to recovery. The Veteran's pension benefits were terminated August 1, 2005 based upon information VA received related to income during 2005. During the time period in question, the Veteran's countable annual income must not exceed the specified maximum annual pension rate (MAPR), specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1521; 38 C.F.R. § 3.3(a)(3). The MAPR is published in Appendix B of the VA Adjudication Procedures Manual M21-1 and is given the same force and effect as if published in VA regulations. 38 C.F.R. § 3.21. The MAPR is revised every December 1st and is applicable for the following 12-month period. The Veteran's main argument in this case has been that the income he received in 2005 was prior to the effective date of his award. The Veteran also argued the debt was invalid because he had not received any explanation from VA as to how the debt was created. In August 2018, following the Board's first remand, VA wrote to the Veteran and explained how the debt was created and also provided an audit to show how the $9,551.00 was calculated. The various sources of income for 2005 were listed, to include private companies and Illinois unemployment income. In June 2021, following the Board's second remand, VA again wrote to the Veteran, this time informing the Veteran that his lay statements were not sufficient to verify his income for 2005 and requesting that he provide information or evidence to support the statements, such as pay stubs or official letters on company letterhead. The Veteran did not respond to either letter. The Board, therefore, presumes he has no argument related to the August 2018 explanation of the debt and no proof that the income received was prior to the time period on appeal. The amounts of income shown in the August 2018 explanation are far in excess of the $10,162 allowable. The Veteran has not provided any listing of medical expenses that would reduce his countable income to an amount allowable for receipt of pension benefits. Based upon the forgoing, the Board finds that during the time period on appeal, the Veteran's household income was in excess of the MAPR specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1521; 38 C.F.R. § 3.3(a)(3). The Board finds an extensive discussion of the MAPR for the time period in question is unnecessary. Since the calculation of the debt was explained to him in August 2018, the Veteran has not provided any argument to suggest he believes his income was not in excess of the MAPR for the time period in question. The action taken by the AOJ retroactively reduced the Veteran's pension benefits during the time period during which he was ineligible. The August 1, 2005 to June 30, 2006 time period in question represents the period of time during which the Veteran became ineligible for pension due to income, prior to his award of Social Security Administration (SSA) benefits. The debt related to SSA benefits was previously considered by the Board. In sum, the RO properly considered the Veteran's wage income in calculating his VA pension benefits and then in terminated his VA pension benefits during the time period during which he was ineligible. The overpayment in the amount of $9,551.00 from this action is valid. The appeal as to the validity of this debt is denied. Waiver Timeliness In March 2010, the DMC issued a decision indicating the Veteran's request for waiver of recovery of the $9,551.00 pension debt had not been filed within the 180-time period allowable for filing waiver requests. The Veteran's request for waiver was denied on that basis alone. The waiver decision indicated the Veteran had been notified of the debt on September 3, 2008, such that he had 180 days from that date in order to request a waiver. The October 2018 supplemental statement of the case (SSOC) clarified that the waiver request had to be submitted by March 2009. The Veteran's claims file does not include any September 3, 2008 communication to the Veteran related to the $9,551.00 debt. A review of the file reveals the AOJ attempted to find a copy of it and in October 2020, the DMC indicated in writing that it cannot locate the letter. With this communication, the DMC provided a copy of a September 8, 2008 communication from the Veteran indicating, "This letter is to inform your Department of my intension to appeal the decision on my account." It is unclear what the Veteran was referring to. The record also includes a July 2009 Financial Status Report (FSR), which is a form used to request a waiver. The Board finds the lack of any proof that VA notified the Veteran of the debt at issue on September 3, 2008 would make it fundamentally unfair to deem a request for waiver untimely. Under applicable criteria, a request for waiver of an indebtedness shall only be considered if made within 180 days following the date of a notice of indebtedness to the debtor. The 180-day period may be extended if the individual requesting waiver demonstrates, as a result of error by either the 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. If the debtor does substantiate there was such a delay in the receipt of the notice of indebtedness, the 180-day period shall be computed from the date of the debtor's actual receipt of the notice of indebtedness. 38 U.S.C. § 5302(a); 38 C.F.R. § 1.963(b)(2). In this case, because VA has no documentation to show when, or if, the Veteran was properly notified of the $9,551.00 debt, the Veteran cannot be held to the 180-day limit for filing the waiver request. Due to the circumstances present in this case, the Board accepts the Veteran's request for a waiver as timely. To this extent only, the Veteran's appeal is granted. REASONS FOR REMAND Due to the Board's decision, above, the matter of whether waiver of recovery of the overpayment at issue is appropriate must now be adjudicated by the AOJ on the merits. Further, many years has passed since the Veteran's submission of an FSR. It is likely that his financial situation has changed. On remand, the Veteran should also be requested to submit an updated FSR. This matter is REMANDED for the following action: 1. Obtain a complete and current financial status report from the Veteran. 2. Adjudicate the issue of waiver of recovery of an overpayment of VA pension benefits in the amount of $9,551.00, undertaking such development as is necessary in order to adjudicate the issue. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.