Citation Nr: 21008112 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 19-31 436 Date: February 11, 2021 ORDER The overpayment of Department of Veterans Affairs (VA) disability compensation benefits in the amount of $13,262.59 due to the concurrent payment of disability and full military pay allowances was not properly created. FINDING OF FACT The overpayment in the amount of $13,262.59 was not properly created; there is no indication of fraud, misrepresentation, or bad faith on the part of the Veteran and recovery of the overpayment would be against equity and good conscience. CONCLUSION OF LAW The overpayment of VA compensation benefits in the amount of $13,262.59 was not properly created. 38 U.S.C. §§ 5110, 5112; 38 C.F.R. §§ 3.500, 3.501. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1951 to June 1976; he is the recipient of the Bronze Star. In February 2021, the Veteran testified before the undersigned Veterans’ Law Judge. A copy of the transcript is associated with the record. Overpayment Recovery of overpayment of any benefits made under laws administered by VA shall be waived if there is no indication of fraud, misrepresentation, or bad faith on the part of the person or persons having an interest in obtaining the waiver, and recovery of the indebtedness from the payee who received such benefits would be against equity and good conscience. 38 U.S.C. § 5302; 38 C.F.R. § 1.963(a). If there is a finding of fraud, misrepresentation, or bad faith by the debtor in the creation of the overpayment, then waiver of the overpayment is precluded automatically and further analysis is not warranted. 38 C.F.R. §§ 1.962, 1.963, 1.965(b). Where there is no indication of fraud, misrepresentation, or bad faith in the record, the indebtedness shall be waived if recovery of the overpayment would be against equity and good conscience. 38 U.S.C. § 5301(a); 38 C.F.R. §§ 1.962, 1.965. The phrase "equity and good conscience" means arriving at a fair decision between the obligor and the Government. In making this determination, consideration will be given to the following elements, which are not intended to be all-inclusive: (1) where actions of the debtor contribute to the creation of the debt; (2) weighing fault of the debtor against VA fault; (3) whether collection would deprive debtor or family of basic necessities; (4) whether withholding of benefits or recovery would nullify the objective for which benefits were intended; (5) failure to make restitution would result in unfair gain to the debtor; (6) reliance on VA benefits results in relinquishment of a valuable right or incurrence of a legal obligation. See 38 C.F.R. § 1.965(a). Overpayment of $13,262.59 In this matter, the Veteran applied for disability benefits in August 2016. On his Fully Developed Claim Form, the Veteran specifically identified that he received $3,407.00 in retirement pay. See August 2016 VA Form 21-526EZ, § 19A. In November 2016, the Veteran was granted service connection for his heart disease as of a September 2015 Intent to File (ITF). In the Notification Letter which accompanied the rating decision, VA provided the Veteran with a summary of his monthly entitlement. See November 2016 Notification Letter. Upon receipt of the notification letter, in November 2016, the Veteran notified VA that he was concerned the Notification did not identify him as having served over 20 years and qualifying for Concurrent Receipt of Retired and Disability Pay (CRDP). The Report of General Information notes that the Veteran requested that VA review the award and “make any needed corrections.” See November 2016 Report of General Information. In January 2017, VA informed the Veteran that in response to his call, VA reviewed his claims file and found that VA failed to withhold VA compensation due to military retired pay (MRP) withholding. See January 2017 correspondence. In March 2018, the Veteran was informed that as a result of VA’s failure to withhold MRP, he was overpaid $13,262.59. See March 2018 DMC-First Demand Letter. This appeal ensued. The Veteran disputes the validity of the debt that was created and asserts that he was not at fault in creating this overpayment. The record evidence supports the Veteran’s assertion that the overpayment in the amount of $13,262.59 was not properly created and he is entitled to waiver of recovery of overpayment. There is no indication of fraud, misrepresentation, or bad faith on the part of the Veteran. Indeed, the Veteran correctly identified himself as receiving retirement pay and also specifically notified VA of its overpayment and failure to appropriately withhold VA compensation. The Board finds that the evidence supports granting the Veteran's request for waiver of recovery of the overpayment in the amount of $13,262.59 because this overpayment was not properly created. The Board again notes that fault in the creation of this overpayment lies with VA’s apparent failure to reconcile its own records, even after notification from the Veteran. The Board finds that it would be against equity and good conscience to permit recovery of the overpayment in the amount of $13,262.59 against the Veteran in this case. The Veteran cannot be held responsible for VA’s failure to follow its own procedures or check its own records prior to issuing him a duplicate payment. Thus, the Veteran’s request for waiver of recovery of the overpayment in the amount of $13,262.59 is granted. The Board finally notes that, because it has found that this alleged overpayment was not validly created, any collection actions by VA should cease. See generally 38 C.F.R. §§ 1.911, 1.916, 1.917, 1.920, 1.942(e). JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.