Citation Nr: 21075919 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-38 680A DATE: December 21, 2021 ORDER The request for a waiver of the recovery of an overpayment of Veterans Retraining Assistance Program (VRAP) education benefits in the amount of $1,098.67 was timely filed; to this extent only, the appeal is granted. REMANDED Entitlement to a waiver of the recovery of an overpayment of VRAP education benefits in the amount of $1,098.67 is remanded FINDINGS OF FACT 1. In August 2013, VA awarded to the Veteran fulltime VRAP education benefits for non-degree program training at the Aiken Technical College from August 19, 2013, to December 13, 2013. 2. In November 2013, VA received a Notice of Change in Student Status (VA Form 22-1999b) from the Veteran's school indicating that he had reduced attendance below the required fulltime rate, effective October 10, 2013, with nonpunitive grades assigned. 3. In a November 2013 letter, VA notified the Veteran that due to his reduction in class attendance below the VRAP fulltime required rate, an overpayment of VRAP education benefits was created. 4. In a letter dated December 5, 2013, the Veteran was notified of the amount of the debt and was told he had 180 days to request a waiver of the recovery of this debt. 5. The Veteran requested a waiver of the recovery of the debt in January 2018, which was more than 180 days after the VA notification. 6. The Veteran timely applied for a waiver of the recovery of the debt due to delay in receipt of the notification of indebtedness by reason of circumstances beyond his control. CONCLUSION OF LAW The Veteran's request for a waiver of the recovery of an overpayment of VRAP education benefits in the amount of $1,098.67 was timely filed. 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 duty from September 1985 to September 1991. The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a virtual Board hearing in November 2021. A transcript of the hearing is of record. The Veteran requests a waiver of the overpayment of VRAP benefits in the amount of $1,098.67, which VA paid for his course of study for a non-degree training program at Aiken Technical College in 2013. An overpayment is created when VA determines that an individual has received payments in excess of the amount due or to which he or she is entitled. 38 C.F.R. § 1.962. The debtor may challenge the validity or amount of the debt owed and may apply for a waiver of a debt found to be valid. 38 C.F.R. §§ 1.911(c), 1.963. In this case however, the threshold issue is whether the Veteran's request for waiver of indebtedness was filed in a timely manner. Generally, when the notice of indebtedness was issued on or after April 1, 1983, a request for waiver of indebtedness shall only be considered if made within 180 days following the date of the notice of indebtedness issued to the debtor by VA. See 38 C.F.R. § 1.963. The 180-day period may be extended if the individual requesting waiver demonstrates to the Chairperson of the Committee that, as a result of an 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 (including forwarding). If the requester does substantiate that there was such a delay in the receipt of the notice of indebtedness, the Chairperson shall direct that the 180-day period be computed from the date of the requester's actual receipt of the notice of indebtedness. 38 U.S.C. § 5302; 38 C.F.R. § 1.963(b). The facts are not in dispute. The record shows that VA awarded to the Veteran fulltime VRAP education benefits for non-degree program training at the Aiken Technical College from August 19, 2013, to December 13, 2013. However, in November 2013, the Veteran's school submitted a VA Form 22-1999b indicating that he had reduced attendance below the required fulltime rate for VRAP, effective October 10, 2013, with nonpunitive grades assigned. The VA Regional Office (RO) sent a letter, dated in November 2013, to the Veteran's address on file notifying him that due to his reduction in class attendance below the VRAP fulltime required rate, an overpayment of VRAP education benefits was created. Thereafter, in a letter dated December 5, 2013, the Debt Management Center (DMC) notified the Veteran that an overpayment in the amount of $1,098.67 was created due to a termination or changes in training. This letter also told the Veteran that he had 180 days to request a waiver of the recovery of this debt. The record shows that following the DMC's December 2013 letter, the Veteran submitted a January 2018 statement in which he requested a waiver of the recovery of the overpayment of debt. Specifically, he asserted that he stopped attending school in December 2012, and that the instructor for the class submitted incorrect paperwork indicating that he was not in attendance prior to December 2012. He noted that the outstanding principal on the debt was in the amount of $1,059.64, and he requested forgiveness of this debt. Although the Veteran also filed a March 2018 request for a waiver with supporting documentation regarding his income and expenses, the Board construes this January 2018 written statement as the earliest request for a waiver of the recovery of the VRAP debt. Nonetheless, the January 2018 request for a waiver of the recovery of the debt was more than 180 days after the VA notification of the debt in December 2013. During the November 2021 Board hearing, the Veteran testified that he did not receive notification of the debt in December 2013 due to certain life circumstances. For example, he testified that his mail and correspondence was being handled by his mother at that time. He also testified that he was involved in a significant automotive accident in November 2014, which resulted in a lengthy stay in the hospital and also a prolonged period of recoupment due to the injuries he sustained in the accident. The Board notes that the record, including the March 2015 VA treatment records, corroborates the Veteran's testimony of the extensive injuries he sustained in the motor vehicle accident, as well as the rehabilitation he was required to undergo as a result of the injuries. For these reasons, and after affording the Veteran the benefit of the doubt, the Board finds him credible as to his lack of receipt of notification of the debt in December 2013. Therefore, the Board finds a delay in the Veteran's receipt of notification of indebtedness due to circumstances beyond his control. It is unclear when exactly he did receive notification regarding this overpayment. However, based on the evidence of record, the Bord finds that the January 2018 statement was a timely request for a waiver of the debt received within the 180-day period. 38 U.S.C. § 5302(a); 38 C.F.R. § 1.963(b)(2). REASONS FOR REMAND In March 2018, the Committee on Waivers and Compromises (COWC) denied the Veteran's request for a waiver on the basis that it was untimely. In light of the Board's above determination that the request for a waiver was timely received, the COWC should make a decision on remand on the merits of waiver of recovery of the overpayment of VRAP education benefits in the amount of $1,098.67. The matter is REMANDED for the following action: Refer the Veteran's request for a waiver of recovery of the overpayment of VRAP education benefits in the amount of $1,098.67 to the COWC for adjudication. The COWC should consider the request for waiver to be timely. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hodzic, 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.