Citation Nr: A21017516 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 210201-159643 DATE: October 29, 2021 ORDER A waiver of the recovery of the overpayment of Department of Veterans Affairs (VA) pension benefits in the amount of $5,249 is granted. FINDINGS OF FACT 1. The overpayment was not due to the Veteran's fraud, misrepresentation or bad faith. 2. Recovery of the debt in this case in the amount of $5,249 is against equity and good conscience. CONCLUSION OF LAW The criteria for a waiver of the recovery of the overpayment of the VA pension benefits in the amount of $5,249 are met. 38 U.S.C. § 5302; 38 C.F.R. §§ 1.963(a), 1.965. REASONS AND BASES FOR FINDINGS AND CONCLUSION This appeal comes to the Board of Veterans' Appeals (Board) from a March 2021 decision of the Committee on Waivers and Compromises (Committee) of the Agency of Original Jurisdiction (AOJ) of VA. In May 2021, the Veteran timely appealed this decision to the Board of Veterans' Appeals (Board) and the Veteran then elected Direct Review by Veteran Law Judge. See May 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). Thus, the Board can only consider the evidence available to the AOJ at the time of the March 2021 decision. See 38 C.F.R. §§ 20.202 (b)(1), (c)(1), 20.301. In a March 2004 rating decision, the AOJ granted entitlement to VA pension benefits. The Veteran was provided a VA Form 21-8768, in which he was informed of his responsibility to promptly report any changes in his income or net worth and that, when reporting income, he was to report the total amount and sources of all income received. The Board notes that pension is an income-based program. The rate of pension is paid based on the recipient's amount of countable income, so the recipient must apprise VA of his/her income and changes thereto. In determining annual income, all payments of any kind or from any source shall be included except for listed exclusions which do not include Social Security Administration (SSA) or wage income. See 38 U.S.C. § 1503 (a); see also 38 C.F.R. § 3.271 (a). In March 2019, the Veteran reported to VA that he began working at a fast-food restaurant establishment that same month. This employment was of short duration. Thereafter, the AOJ received information showing that the Veteran had been awarded SSA benefits. Due to the increase in income, the AOJ retroactively adjusted the Veteran's benefits. This action resulted in an overpayment of $18,632. The Veteran requested a waiver of the recovery of the overpayment. He has repeatedly submitted information indicating that he is experiencing financial hardship and is thousands of dollars behind on his rent and on the verge of homelessness. The Board notes that his case has been advanced on the docket due to that financial hardship. The Veteran's request for a waiver of the overpayment was referred to the Committee. The Committee did not find fraud, misrepresentation, or bad faith in this case; however, the Committee determined that while a portion of the debt totaling $13,383 would cause financial hardship, the Committee found it would be against the principles of equity and good conscience if the remainder of the debt totaling $5,249 was not collected, noting that this portion had been recouped. Thus, the request for a waiver of the recovery of the overpayment at issue was denied. In cases where fraud, misrepresentation, or bad faith on the Appellant's part with respect to the creation of the overpayment at issue has not been demonstrated, and, therefore, waiver is not precluded pursuant to 38 U.S.C. § 5302 (a), the Board must determine whether recovery of the indebtedness would be against equity and good conscience, thereby permitting waiver under 38 U.S.C. § 5302 (a) and 38 C.F.R. §§ 1.963 (a), 1.965(a). In making this determination, consideration is given to the following elements, which are not intended to be all-inclusive: (1) fault of debtor (where actions of the debtors contribute to the creation of the debt); (2) balancing of faults (weighing fault of the debtor vs. the fault of VA); (3) undue hardship (whether collection would deprive the debtor or family of basic necessities); (4) defeat the purpose (whether withholding of benefits or recovery would nullify the objective for which benefits were intended); (5) unjust enrichment (failure to make restitution would result in unfair gain to the debtor); and (6) changing position to one's detriment (reliance on VA benefits results in relinquishment of a valuable right or incurrence of a legal obligation). See 38 C.F.R. § 1.965 (a). The first and second elements pertain to the fault of the debtor versus the fault of VA. After consideration of the record, the Board finds that the Veteran was at fault for not notifying VA of his SSA income in a more prompt manner. In regard to whether failure to collect would cause unjust enrichment to the debtor, the Board notes that the Veteran received benefits to which he was not entitled and as such, would cause unjust enrichment to the debtor. Likewise, there is no indication that the Veteran's reliance on VA benefits resulted in relinquishment of another valuable right. As to whether recoupment of those benefits would defeat the purpose of the benefit, pension benefits are income-based and for those below a certain income level. Thus, to a certain degree, recoupment would defeat the purpose of the benefit since the Veteran has a low level of income. The Board has also considered whether the Veteran would suffer undue financial hardship if forced to repay the debt at issue. The Committee found that there was financial hardship with regard to $13,383 of the debt, but not with regard to $5,249. The Board finds, however, that there is financial hardship as to the full debt as the Veteran is on the verge of losing his housing. After weighing all of the enumerated factors, the Board finds that recovery of the overpayment violates the principles of equity and good conscience, particularly considering the element of financial hardship. Thus, waiver of the recovery of the overpayment of the $5,249 debt is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Connolly, 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.