Citation Nr: 21072458 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-28 334A DATE: December 3, 2021 ORDER The request for waiver of an overpayment of Department of Veterans Affairs (VA) pension benefits was not timely filed; the appeal is denied FINDINGS OF FACT 1. In August 2013 and October 2013, the appellant was notified by the VA Debt Management Center (DMC) that she owed debts totaling $35,519; the letters stated that she could request a waiver of the recovery of the debt within 180 days. 2. Internal VA notes documenting a March 27, 2014 telephone call were made within 180 days of the October 2, 2013 DMC notice; however, VA informed her at that time that no waiver request was in the record and that one would need to be faxed in; the appellant did not respond. 3. Additional telephone call notes show the appellant was informed that no waiver request had been received again in April 2014, June 2014, and July 2014; the appellant did not respond by sending in a waiver request. 4. There was no delay in the appellant's receipt of the notification of indebtedness as a result of VA or postal authority error, or due to other circumstances beyond the appellant's control. CONCLUSION OF LAW The appellant did not apply for a waiver of recovery of overpayment of VA pension benefits 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 served in the United States Army from January 1940 to July 1945. He died in February 2004. The appellant is his surviving spouse. She was in receipt of VA pension benefits for many years. In June 2013, the VA Pension Management Center (PMC) notified the appellant that her pension benefits were being terminated effective February 1, 2013, due to information received from the Social Security Administration (SSA) related to her income. The VA Debt Management Center (DMC) notified her in a letter dated July 4, 2013 of the $2,784 debt that had resulted from the retroactive termination in benefits. The appellant was again notified of this debt by way of an August 1, 2013 DMC letter. Additional unreported income was discovered by VA and in September 2013, an additional $32,735 debt was created due to retroactively terminating the pension benefits effective January 1, 2009. The appellant was informed of this debt by way of a DMC letter dated October 2, 2013. The appellant later requested a waiver, which was denied by the DMC in October 2017 on the basis that the waiver request was untimely. This matter has come before the Board of Veterans' Appeals (Board) by way of the appellant's timely appeal of the October 2017 DMC decision. The appellant and her sister provided hearing testimony before the undersigned Veterans Law Judge in October 2021. A transcript of that hearing is within the record before the Board. 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). As noted above, the appellant was notified of her debts, most recently, in October 2013. The DMC notification letters inform the debtor of the right request a waiver of the recovery of the debt in certain circumstances. The appellant was informed that she had 180 days to request a waiver of the recovery of this debt. At the Board hearing, the appellant testified that she faxed a waiver request in, although she could not remember exactly when. She believed it was in 2013. At the time of the hearing, the undersigned discovered a statement from the Veteran believed to have been dated in March 2013. Upon closer review of the date stamp, the document was received in March 2018. This handwritten letter indicates the appellant was asking for "complete forgiveness for a debt owed to [VA and that she] was not aware that the waiver had to be received in a certain time frame." Nonetheless, at the Board hearing, the appellant testified that she had sent in a timely waiver request, which implies she did know of the time limit for filing. The Board has reviewed the claims file for the earliest evidence of a waiver request. Internal notes from a telephone call with the appellant on March 27, 2014, which was within 180 days of the October 2, 2013, shows that she indicated she had faxed in a Financial Status Report (FSR) and she thought it was received, but the VA employee confirmed that no FSR had been received as of the date of the call. Notes from an April 2014 phone call show the appellant was instructed as to where to fax the waiver request. In June 2014 and July 2014 telephone calls, the appellant was advised that no waiver paperwork had been received. There is no evidence that the appellant sent in the waiver request prior to the March 2014 phone call, and, more importantly, she did not send in a FSR or other written waiver request after she was informed that it had not been received. VA appeared to invite her to resend the request and she did not do so. At the Board hearing, she gave no indication that she resent the request. Records from the DMC show the appellant's waiver request was received in October 2017, several years after the 180 time limit following the October 2013 notice of the debt. Because there is no evidence in the record establishing that there was a delay in the appellant's receipt of the notification of indebtedness beyond the 30 days accepted by the Board as a result of an error by either VA or the postal authorities, or due to other circumstances beyond the appellant's control, and because the appellant did not submit a waiver request within 180 days of October 2, 2013, the Board concludes that the appellant did not timely request a waiver of recovery of an overpayment of VA pension benefits. The appeal is, therefore, denied. Finally, the Board recognizes that, at the time of the October 2021 hearing, the appellant requested that the amount taken from her SSA benefits to recoup the VA debt be lessened as she was experiencing financial hardship. The amount of the monthly payments is not a matter currently within the Board's jurisdiction. However, the notice to her of the debts invite her to contact DMC in order to work out a payment plan. SHEREEN M. MARCUS 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.