Citation Nr: 21062897 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 18-33 766 DATE: October 12, 2021 ORDER As an overpayment of Chapter 33 (Post-9/11 GI Bill) VA education benefits in the amount of $2075.77 was not properly created (i.e., it was not a valid debt); the appeal is granted. FINDING OF FACT The overpayment of Post-9/11 GI Bill educational assistance benefits in the amount of $2075.77 was due to mitigating circumstances beyond the Appellant's control which prevented her from continuously pursuing her program of education. CONCLUSION OF LAW The debt created by the overpayment of Post-9/11 GI Bill educational assistance benefits in the calculated amount of $2075.77 is not valid. 38 U.S.C. §§ 3002, 3011; 38 C.F.R. §§ 21.7020, 21.7144. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant is the receipt of education benefits through the transfer of entitlement (TOE) program from her spouse, who served on active duty in the Army. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in May 2021. A transcript of the hearing has been associated with the record. Whether an overpayment of Chapter 33 (Post-9/11 GI Bill) VA education benefits in the amount of $2,075.77 was properly created The Appellant contends that a debt in the amount of $2,075.77 was not properly created. Legal Criteria VA shall pay to each individual entitled to basic educational assistance who is pursuing an approved program of education, an educational assistance allowance to help meet in part, the expenses of such individual subsistence, tuition, fees, supplies, books, equipment and other educational costs. See 38 U.S.C. §§ 3002, 3014(a); 38 C.F.R. §§ 21.7120, 21.7130. An eligible claimant is entitled to a monthly benefit for periods of time during which he or she is enrolled in, and satisfactorily pursuing, an approved program of education. See 38 U.S.C. § 3014; 38 C.F.R. § 21.7140. An educational institution must certify an individual's enrollment before he may receive educational assistance. See 38 C.F.R. §§ 21.7140, 21.7152. A claimant must report to VA, without delay, a change in credit hours or clock hours of attendance if that change would result in less than full-time enrollment, as well as any change in her pursuit that would result in less than full-time enrollment. 38 C.F.R. §§ 21.7156. A beneficiary is charged with knowing the rules governing compensation. Dent v. McDonald, 27 Vet. App. 362, 382 (2015) (summarizing Jordan v. Brown, 10 Vet. App. 171, 174-75 (1997)). A person may have actual or constructive knowledge of a fact, the latter of which is defined as "[k]nowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to a given person." Dent, 27 Vet. App. at 380. An overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. See 38 U.S.C. § 5302; 38 C.F.R. § 1.962. VA will not pay benefits for a course from which the claimant withdraws or receives a non-punitive grade (grades that do not count toward graduation) unless either the claimant withdraws because he or she is ordered to active duty; or a situation occurs in which all of the following criteria are met: (i) there are mitigating circumstances; and (ii) the claimant or service member submits a description of the mitigating circumstances in writing to VA within one year from the date VA notifies the claimant or service member that he or she must submit a description of the mitigating circumstances, or at a later date if the claimant or service member is able to show good cause why the one-year time limit should be extended to the date on which he or she submitted the description of the mitigating circumstances; and (iii) the claimant or service member submits evidence supporting the existence of mitigating circumstances within one year of the date that evidence is requested by VA, or at a later date if the claimant or service member is able to show good cause why the one-year time limit should be extended to the date on which he or she submitted the evidence supporting the existence of mitigating circumstances. 38 U.S.C. §§ 3034, 3680; 38 C.F.R. § 21.7139. Examples of qualifying mitigating circumstances include: illness of the individual or her family; family death; an unavoidable geographical transfer resulting from the individual's employment; an unavoidable change in employment conditions; immediate family or financial obligations beyond the individual's control that require him to suspend pursuit of the program of education in order to obtain employment; discontinuance of the course by the school; unanticipated active duty for training; or unanticipated child-care difficulties. 38 C.F.R. § 21.7020. Analysis At the outset, the Board notes that the Appellant's basic eligibility for Chapter 33 (Post-9/11 GI Bill) education benefits through the TOE program is not in dispute. Rather, the dispute is whether she received an overpayment of such benefits. In April 2018, VA received a Notice of Change in Student Status from Bryant and Stratton College-Hampton. The school reported that the Appellant withdrew from six credit hours, after the drop period with punitive grades, effective March 28, 2018. On May 4, 2018, VA notified the Veteran that the action created an overpayment in the amount of $2,075.77. In a June 2018 substantive appeal, the Appellant noted that she had registered and was attending courses starting in January 2018 but that her husband received orders in March and was transferred to another state on April 5, 2018 prior to the end of the semester on April 23, 2018. The appellant reported that her professors advised her to complete all assignments virtually which she did, but that the school administration marked her as having withdrawn. During the May 2021 hearing, the Appellant testified with respect to mitigating circumstances in her case sufficient to render her overpayment of Post-9/11 GI Bill educational benefits invalid. Specifically, she argued that she completed the assignments and was prepared to finish the rest of class and examinations virtually as a result of her active-duty spouse's change in duty station, a fact which was not known to her at the time of her enrollment into her course of study. The Appellant testified that she did not receive credit for virtual participation due to school policy. The Board finds that the Appellant's arguments regarding her mitigating circumstances to be persuasive. Accordingly, the Board must find that the debt created by VA's payment of educational assistance under the Post-9/11 GI Bill in the calculated amount of $2,075.77 was due to mitigating circumstances beyond the Appellant's control, which prevented her from continuously pursuing her program of education. As such, the debt was not properly created, and is not valid. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Casey, 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.