Citation Nr: 21074137 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-44 462 DATE: December 14, 2021 ORDER Timeliness of the request for a waiver of an overpayment of VA pension benefits in the amount of $101,883.80 is granted. REMANDED Entitlement to waiver of recovery of overpayment of VA pension benefits in the amount of $101,883.80 is remanded. FINDING OF FACT The Veteran did not receive notification of the overpayment of VA pension benefits in the amount of $101,883.80 until February 2018. CONCLUSION OF LAW The Veteran's request for a waiver of recovery of the overpayment of VA pension benefits in the amount of $101,883.80 is timely. 38 U.S.C. § 5302(a); 38 C.F.R. § 1.963(b)(2). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1988 to July 1991. The case is on appeal from a February 2014 decision. In January 2021, the Veteran testified at a Board hearing. Whether the request for a waiver of an overpayment of VA pension benefits in the amount of $101,883.80 was timely filed. In February 2014, the RO found that the Veteran was improperly receiving pension benefits and mailed him notice of overpayment. Later in 2014, the RO began to receive returned mail from the Veteran's address. In February 2016, the RO began using a new address for the Veteran. In February 2018, the Veteran requested a copy of the February 2014 notification. He was sent a copy of the notification later that month. In a March 2018 statement, the Veteran requested a waiver of the overpayment. In July 2018, the RO issued a statement of the case (SOC) indicating that the Veteran's request for waiver of recovery of the $101,883.80 of pension debt had not been filed within the 180-time period allowable for filing waiver requests. The SOC stated that the Veteran was notified of the debt in February 2014 and that he had not requested a waiver within 180 days of the notification. The waiver request was denied on that basis alone. During the January 2021 Board hearing, the Veteran reported that he moved prior to February 2014 and notified the RO of his new address over the telephone. In addition, the Veteran's representative stated that the Veteran is not challenging the validity of the debt. The Veteran's claims file shows that his address was updated by VA on several occasions prior to 2014 without a written request to change the address. This indicates that the Veteran successfully changed his address with VA over the telephone on more than one occasion prior to 2014. Therefore, the Board finds that the Veteran's report that he called the RO to change his address over the telephone before the notification was mailed to be credible. 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). The Veteran has substantiated that he did not receive notification of the debt until February 2018 and he filed a waiver request the following month. Thus, it would be fundamentally unfair to deem a request for waiver untimely as the March 2018 waiver request was within the 180-days of the actual receipt of notification in February 2018. Due to the circumstances present in this case, the Board accepts the Veteran's request for a waiver as timely. To this extent only, the Veteran's appeal is granted. REASONS FOR REMAND Entitlement to waiver of recovery of overpayment of VA pension benefits in the amount of $101,883.80. As the Veteran's waiver request was timely, the matter of whether waiver of recovery of the overpayment at issue is appropriate must now be adjudicated by the RO on the merits. In addition, the Veteran should also be requested to submit a Financial Status Report (FSR). This matter is REMANDED for the following actions: 1. Obtain a complete and current financial status report from the Veteran. 2. Adjudicate the issue of waiver of recovery of an overpayment of VA pension benefits in the amount of $101,883.80, undertaking such development as is necessary in order to adjudicate the issue. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield 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.