Citation Nr: 21071404 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-22 617 DATE: November 30, 2021 ORDER The Veteran's request for a waiver of recovery of overpayment of Department of Veterans Affairs (VA) pension benefits in the amount of $41,623.00 was not timely filed; the appeal is denied. The Veteran's request for a waiver of recovery of overpayment VA pension benefits in the amount of $2,292.00 was not timely filed; the appeal is denied. FINDINGS OF FACT 1. In May 2008, the Veteran was notified that he owed a debt of $41,623.00; in March 2013, the Veteran was notified of an additional $2,292.00 debt. 2. The VA Debt Management Center (DMC) letters state that the Veteran can request a waiver of the recovery of a debt within 180 days. 3. There was no delay in the Veteran's receipt of the May 2008 or March 2013 notification of indebtedness as a result of VA or postal authority error, or due to other circumstances beyond the Veteran's control. 4. The Veteran filed a Financial Status Report (FSR) and requested a waiver in September 2014. CONCLUSIONS OF LAW 1. The Veteran did not apply for a waiver of recovery of overpayment of VA pension benefits in the amount of $41,623.00 in a timely manner. 38 U.S.C. § 5302(a); 38 C.F.R. § 1.963(b)(2). 2. The Veteran did not apply for a waiver of recovery of overpayment of VA pension benefits in the amount of $2,292.00 in a timely manner. 38 U.S.C. § 5302(a); 38 C.F.R. § 1.963(b)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from August 1968 to August 1971. These matters come before the Board of Veterans' Appeals (Board) from January 2015 and March 2016 decisions of the 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. While the decisions below relate to entitlement to a waiver of the debts at issue, the Board will first provide the history of how the debts arose. In January 2001, the VA Regional Office (RO) issued a decision awarding the Veteran nonservice-connected pension with a permanent and total evaluation. The January 2001 letter notifying the Veteran of this award indicated that the pension rate depends on his income. The letter informed the Veteran that he was being paid as a single veteran with no dependents and zero income. The letter also informed him that it was his responsibility to inform VA right away if his income changed. In January 2008, the Milwaukee VA Pension Center informed the Veteran that it had received income verification showing gambling winnings in 2004 and 2005, which would need to be counted as income. The letter indicated $6000 was counted as countable income effective February 1, 2004, and $14,000 was counted as countable income effective November 1, 2004. Because the $14,000 was over the allowable maximum limit of income for pension qualification, the letter proposed to terminate the Veteran's pension effective November 1, 2004. In May 2008, the Pension Center notified the Veteran that the proposed action was being taken. A debt in the amount of $41,623.00 was created and in May 2008 the DMC notified the Veteran of this debt. The DMC again wrote to the Veteran about this debt in February 2009. In April 2009, the Veteran's representative submitted a notice of disagreement (NOD) with this debt. The representative indicated the Veteran was requesting a hearing. However, in February 2011, the Veteran indicated that he wished to withdraw the NOD as to the May 2008 DMC letter and that he wished to only request reinstatement of his pension. The Veteran's hearing with the RO related to the debt had already been scheduled. The March 2011 Informal Conference Report shows the RO explained how this debt was created. The Veteran and his representative again indicated that that NOD was being dropped and that he was only requesting that his pension benefits be reinstated. The appeal was closed, and the Veteran's pension benefits were later reinstated. Several months later in July 2011, the Veteran submitted a handwritten statement indicating the overpayment matter was confusing and he suggested he had been trying to get it resolved for 3 1/2 years. In June 2012, the Veteran submitted a statement requesting an audit and suggesting that he does not know how his debt came into existence. The RO responded later in June 2012 and provided the requested audit and again explained how the debt came into existence. In November 2012, the Veteran notified VA that he had begun receiving benefits from the Social Security Administration. In March 2013, the VA Pension Management Center notified the Veteran that an adjustment to his pension benefits was being made as a result of this additional income, effective December 1, 2012. A $2,292 debt resulted from this retroactive adjustment to the Veteran's benefits. The DMC notified the Veteran of this debt later in March 2013. In December 2013, the RO provided the Veteran with another narrative explanation of the Veteran's debt, including both the $41,623 and $2,292 debts. Another audit was provided. The Veteran then filed his VA Form 5655 Financial Status Report and requested a waiver in September 2014. The decisions on appeal followed. The Board recognizes that the Veteran, at the time of his August 2021 hearing, suggested that VA has withheld information and has refused to explain to him how his debts were created. As indicated above, this is not factually accurate. Narrative explanations and numerical audits were provided several times. VA has responded each time the Veteran has requested information related to the creation of these debts. The Board also notes that at no time has the Veteran challenged the information provided him. The Board, therefore, finds that neither the matter of the validity of the amounts due, nor the matter of the propriety of creation of the debt at issue have been appealed. The only matter on appeal relates the two COWC decisions that denied waiver of recovery of the overpayments at issue. The Board will now turn to the waiver issues. 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). $41,623.00 Debt As noted above, the Veteran was notified by the DMC in May 2008 of the $41,623.00 debt. The notice provided the information needed, to include the time limits, for requesting a waiver. There is no indication in the record that the notice was returned by the U.S. Postal Service. Thus, the Board presumes the DMC notice was successfully delivered. The Veteran filed his request for waiver in February 2014. The Veteran's request for waiver of the $41,623.00 debt was denied in January 2015 as it was not received with 180 days of the notification letter. At his Board hearing, the Veteran suggested he had several medical issues arise such that he was unable to know and keep track of the dates required for filing his waiver request. As discussed above, however, the Veteran did file several statements over the course of time between the May 2008 DMC notice and the February 2014 waiver request. There is no indication in the record that he was incapacitated within the 180 day period following the May 2008 letter. Moreover, as late as February 2011, the Veteran withdrew an appeal related to this debt. There was no suggestion at that time that he was seeking a waiver or any other appeal as to the debt; rather, he clarified that he simply wanted his pension reinstated. In sum, the evidence shows the Veteran received notice of the $41,623.00 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 $41,623.00 in VA pension benefits. The appeal is denied. $2,292 Debt As indicated above, the $2,292.00 debt was due to an adjustment in the Veteran's benefits following his notification to VA that he began receiving Social Security Administration benefits. The Veteran was notified by the RO of the adjustment being made to his pension benefits in March 2013, and the Veteran was notified of the amount of the debt created due to this adjustment by the DMC later in March 2013. Again, his waiver request was received in February 2014. As with the other debt, the Veteran has suggested he had several medical issues arise such that he was unable to know and keep track of the dates required for filing his waiver request. He did file several statements over the course of time between the March 2013 DMC notice and the February 2014 waiver request. There is no indication in the record that he was incapacitated within the 180 day period following the March 2013 DMC letter. There has been no suggestion that the Veteran did not receive the DMC notice of this debt. 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 $2,292.00 in VA pension benefits. The appeal is denied. K. Parakkal 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.