Citation Nr: 21070137 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 15-23 348 DATE: November 23, 2021 ORDER The Veteran's request for a waiver of recovery of overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $5,736.00 was not timely filed; the appeal is denied. FINDINGS OF FACT 1. In May 2012, the Veteran was notified that he owed a debt of $5,736.00; the letter stated that the Veteran could request a waiver of the recovery of the debt within 180 days. 2. The Veteran filed a Financial Status Report and requested a waiver in October 2014. 3. There was no delay in the Veteran's receipt of the notification of indebtedness as a result of VA or postal authority error, or due to other circumstances beyond the Veteran's control. CONCLUSION OF LAW The Veteran did not apply for a waiver of recovery of overpayment of VA compensation benefits in the amount of $5,736.00 in a timely manner. 38 U.S.C. § 5302(a); 38 C.F.R. § 1.963(b)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Marine Corps from September 1994 to February 1999, from May 1999 to April 2001, from January 2003 to January 2005, from July 2005 to May 2006, from September 2006 to January 2008, and from October 2008 to February 2009. This matter comes before the Board of Veterans' Appeals (Board) from a November 2014 decision of the Department of Veteran's Affairs (VA) Committee on Waivers and Compromises (COWC). The Veteran provided hearing testimony before the undersigned Veterans Law Judge in August 2021 at a virtual Board hearing. 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 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 February 2012, VA learned the Veteran was incarcerated followed the conviction of a felony and that he had plead guilty on November 1, 2011. In February 2012, the RO notified the Veteran that it had received this information and that his benefit would be reduced in accordance with 38 C.F.R. § 3.655 effective January 1, 2012. The RO allowed the Veteran 60 days to respond. Later in February 2012, the Veteran responded and requested that the reduction be made and also inquired related to an apportionment of his benefits for his dependent child. The RO again wrote to the Veteran in May 2012 and notified him that the proposed action was taking place. This letter informed the Veteran that an overpayment had been created as a result. The Veteran responded in May 2012 and confirmed his receipt of the information. The Veteran was informed of the debt at issue later in May 2012. As noted in the COWC decision, an internal VA database shows the notice of the debt was sent to the Veteran by the VA Debt Management Center (DMC) on May 24, 2012. There is no indication in the record that this notice was returned by the U.S. Postal Service. Thus, the Board presumes the DMC notice was successfully delivered. The DMC sends notice of debts on a form that notifies the Veteran of the amount of the debt and that he has 180 days to request a waiver of the recovery of this debt. The Veteran in this case sent in a Financial Status Report requesting a waiver in October 2014. The Veteran's request was denied in November 2014 as it was not received with 180 days of the notification letter. In March 2015, the Veteran filed a statement indicating disagreement with the decision. In this statement, the Veteran confirmed that notice from VA of the debt was received, but he suggested he was not informed of his right to appeal or to request a waiver. He indicated he was "alerted to the overpayment and then the deductions began." He suggested he was informed of his right to appeal at a Veteran's Support Group meeting at the prison. Another March 2015 submission by the Veteran repeats his contentions and also includes arguments as to why the waiver is warranted on the merits. In June 2015, the Veteran filed his VA Form 9 on which he again confirmed that the notice of debt had been received, and that it had indicated monthly deductions would begin the following month. He again suggested this notice did not include his right to appeal. At his August 2021 Board hearing, the Veteran suggested he did not receive notice of the debt and his representative suggested it was sent to the prison and the prison notoriously loses mail. This testimony is, however, inconsistent with the Veteran's prior statements. The Veteran on more than on occasion confirmed with VA that he had received the notice of debt. His argument was, however, that this notice did not include his right to appeal. Due to its inconsistency with his prior statements, the Board finds the hearing testimony to lack credibility. As for the assertion that the DMC notice of the debt did not include appeal rights, the Board finds this is also not consistent with the record. DMC notice of debt is found on a form letter that refers to the back of the letter, which includes notice of the right to request a waiver and the time limitation for doing so. Thus, as the Veteran repeatedly stated he received the notice of the debt, the Board finds he also received his right to appeal. His request for waiver, however, was received outside of the 180-day period allowed. In sum, the evidence shows the Veteran received notice of the debt at issue and there is no evidence establishing there was a delay in receipt of the notification of indebtedness as a result of an error by either VA or the postal authorities, or due to circumstances beyond the Veteran's control. The Veteran's request for waiver was received by VA more than 180 days after the notice of the debt. The Board concludes that the Veteran did not timely request a waiver of recovery of overpayment of VA benefits. The appeal is denied. H.M. WALKER 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.