Citation Nr: A21019442 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 191227-51812 DATE: December 7, 2021 ORDER The request for a waiver of the recovery of an overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $27,519.33 was timely filed; to this extent only, the appeal is granted. REMANDED Entitlement to a waiver of recovery of overpayment of VA compensation benefits in the amount of $27,519.33, is remanded. FINDINGS OF FACT 1. In January 2014, VA received notice that the Veteran was incarcerated for a felony. 2. In May 2014, the Veteran was advised of the amount of the debt at issue ($27, 519.33); the notice was sent to his address of record; the letter stated that the Veteran could request a waiver of the recovery of the debt within 180 days. 3. The record is unclear as to whether the Veteran was forwarded the mailed notification of the amount of the debt at issue. 4. In September 2019, the Veteran requested a waiver of the recovery of the debt. CONCLUSION OF LAW The request for a waiver of the recovery of an overpayment of VA compensation benefits in the amount of $27,519.33 is timely. 38 U.S.C. § 5302(a); 38 C.F.R. § 1.963(b)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1990 to June 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2019 decision issued by the Committee on Waivers and Compromises (COWC) of the Department of Veterans Affairs (VA) Regional Office (RO). In the December 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. In February 2021, the Board sent a rejection of appeal letter to the Veteran in response to the December 2019 VA Form 10182. This rejection letter was issued in error and the matter noted on the VA Form 10182 is properly before the Board under the modernized review system. Whether the request for a waiver of the recovery of an overpayment of VA compensation benefits in the amount of $27,519.33 was timely filed. The November 2019 decision on appeal, as issued by the COWC, denied the Veteran's request for waiver on the basis that it was not timely received. As set forth below, the Board finds that the request for a waiver of the recovery of the debt was timely; thus, an adjudication by COWC on the merits is now warranted. The Veteran is receiving VA disability compensation benefits. In January 2014, VA received information from a computerized search that the Veteran was incarcerated as of May 2013. Under pertinent VA laws and regulations, any individual who is entitled to compensation or to dependency and indemnity compensation and who is incarcerated in a Federal, State, local, or other penal institution or correctional facility for a period in excess of sixty days for conviction of a felony (where, as here, committed after October 7, 1980) shall not be paid such compensation or dependency and indemnity compensation, for the period beginning on the sixty-first day of such incarceration and ending on the day such incarceration ends, in an amount that exceeds (A) in the case of a veteran with a service-connected disability rated at 20 percent or more, the rate of compensation payable under section 1114(a) of this title; or (B) in the case of a veteran with a service-connected disability not rated at 20 percent or more or in the case of a surviving spouse, parent, or child, one-half of the rate of compensation payable under section 1114(a) of this title. 38 U.S.C. § 5313(a); 38 C.F.R. § 3.665(a). In February 2014, VA ran a state-based offender search that showed the Veteran was not scheduled for release at the time of the search. The Veteran's correctional facility was noted on the search result. In that same month, the AOJ sent a letter to the Veteran at his previous residential address, informing him that evidence was received indicating he was currently incarcerated following a felony. This letter also stated that his VA compensation benefits would be reduced by law, and an overpayment may be incurred as a result. On another copy of this letter, an AOJ reviewer wrote, 'also sent to prison addr,' indicating a copy was sent to the Veteran at the address of the correctional facility. With regard to the overpayment at issue, since VA did not have notice of the Veteran's incarcerated status in a prompt manner, VA retroactively reduced the Veteran's compensation benefits to one-half of the rate of compensation effective June 26, 2013, the 61st day following the Veteran's conviction. He was sent notice of this reduction in an April 2014 letter to his residential address of record. The delayed notice of his incarceration status resulted in an overpayment totaling $27,519.33. In May 2014, the Debt Management Center (DMC) advised the Veteran of the amount of the debt at issue and the notice was sent to his residential address of record. The enclosed document stated that the Veteran could request a waiver of the recovery of the debt within 180 days. There was no indication that this letter was sent to the correctional facility where he was held, similar to the circumstances involving the February 2014 VA letter. In March 2016, VA ran another state-based search that indicated the Veteran was now held at a different correctional facility. More recent letters received from him were sent from this correctional facility's address. The Veteran requested to waive his debt in September 2019, which was denied for untimeliness. 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 contends he did appeal the notice of the original letter of debt in the time allowed. He argues that he 'absolutely did write an appeal letter when the first notice was sent' and he waited for a response. He also argues that his resources to reach out to VA were limited and that many times in prison, an inmate may write a letter but was never sent through the mail system because it was 'lost in the shuffle.' See December 2019 correspondence. In this case, the Veteran's request for a waiver of the recovery of the debt was undoubtedly not received within 180 days of the May 2014 notification letter sent by the DMC. This was not due to any mistake on the part of the postal authority as far as the Board can tell, since his claims file does not contain any returned mail. However, the evidence of record is less clear on whether the non-receipt was VA error because although the initial debt reduction proposal letter sent in February 2014 contained a note that a copy was sent to the correctional facility where he was held at the time, the Board is less clear as to whether the same due process was afforded to him for the April 2014 VA letter that effectuated the reduction, or the May 2014 debt notice letter issued by the DMC. He was not moved to his current correctional facility until at least March 2016. Even if he did receive one of the two letters in a timely manner, the Board finds the Veteran's statements about his delay requesting waiver due to unreliable prison mail reasonable, especially in light of more recent mail received from his current correctional facility than previously, as this can be likened to 'other circumstances beyond the debtor's control.' 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 a waiver of recovery of overpayment of VA compensation benefits in the amount of $27,519.33, is remanded. Due to the Board's determination that the Veteran's request for a waiver was timely, the issue of waiver of recovery of the overpayment at issue must now be adjudicated by the AOJ in the first instance to avoid prejudice to the Veteran. The matter is REMANDED for the following action: Forward the Veteran's request for a waiver to COWC to adjudicate the issue of waiver of recovery of an overpayment of VA compensation benefits in the amount of $27,519.33. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Tang, 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.