Citation Nr: 21007187 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-18 601 DATE: February 8, 2021 ORDER The Appellant's request for a waiver of indebtedness was timely; 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 $35,868.90 is remanded. FINDING OF FACT The Appellant’s representative submitted a request for a waiver of indebtedness to VA on September 24, 2015, which was within 180 days of receiving notification of the debt. CONCLUSION OF LAW The Appellant’s request for a waiver of indebtedness was timely. 38 U.S.C. § 5302; 38 C.F.R. § 1.963. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from January 2010 to January 2011, May 2013 to September 2013, and from May 2014 to October 2014. The Appellant is the Veteran’s spouse. In January 2021, the Appellant testified before the undersigned. A copy of that transcript is of record. 1. Whether the Appellant's request for a waiver of indebtedness was timely. 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. § 1.96. 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 Appellant’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 the VA. See 38 C.F.R. § 1.963. Here, the Appellant was notified of an overpayment by the VA Regional Office (RO) on February 23, 2015, and she was notified of the debt amount, rights, and obligations by the VA Debt Management Center (DMC) on March 28, 2015. The March 2015 correspondence from the DMC specifically notified the Appellant of the indebtedness and instructed that she had 180 days to challenge this indebtedness or request a waiver. The Appellant does not dispute that she was informed of her rights by the DMC on March 28, 2015. At the January 2021 Board virtual hearing, the Appellant testified that she requested a waiver of indebtedness in a notice of disagreement received by VA on September 28, 2015, which is more than 180 days after she was notified of the creation of an overpayment; however, the Appellant further testified that she sent in her waiver request on September 24, 2015, the last day allowed by the 180 day limit. In addition to the Appellant’s sworn testimony, she submitted receipts showing a document mailed to the correct address for the VA RO as well as a tracking document confirming that the document was mailed via United States Postal Service (USPS) on September 24, 2015. Receipts further detail that delivery was unsuccessfully attempted by the USPS on September 26, 2015, a Saturday. The Board finds that there is clear evidence that the Appellant (via her attorney) mailed a waiver of indebtedness on September 24, 2015 to VA which, by no fault of the Appellant, VA did not receive until September 28, 2015. The controlling regulation concerning timeliness of requests for waivers states simply that a request be made within 180 days following the date of notice of indebtedness. (emphasis added) See 38 C.F.R. § 1.963. As the evidence of record reflects that such a request for waiver was made within the time frame prescribed, the Board finds that the Appellant timely submitted a waiver of indebtedness to VA. Accordingly, the appeal as to timeliness of the waiver of indebtedness is granted. REASONS FOR REMAND 2. Entitlement to a waiver of recovery of overpayment of VA compensation benefits in the amount of $35,868.90 is remanded. As the Board determined herein that the Appellant’s request for a waiver of overpayment was timely filed, the merits of the waiver request will be remanded for adjudication by the Agency of Original Jurisdiction (AOJ) in the first instance. The issue of waiver of overpayment is REMANDED for the following action: The matter should be referred for review of the merits of the waiver request in the calculated amount of $35,868.90, to include the question of whether the overpayment was validly created. If the claim remains denied, provide the Appellant and her representative with a Statement of the Case and allow an appropriate time period for response, after which the case is to be returned to the Board for further consideration if a timely substantive appeal is filed. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden 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.