Citation Nr: 21009362 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-46 077 DATE: February 22, 2021 ORDER Entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $3,603.49 due to concurrent receipt of active pay and VA compensation benefits is denied. FINDINGS OF FACT 1. The overpayment was not due to the Veteran’s fraud, misrepresentation, or bad faith. 2. Recovery of the debt in this case in the amount of $3,603.49 is not against equity and good conscience. CONCLUSION OF LAW Recovery of the overpayment of VA compensation benefits in the amount of $3,603.49 would not be contrary to the principles of equity and good conscience. 38 U.S.C. § 5302; 38 C.F.R. §§ 1.963(a), 1.965. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran honorably served on active duty from September 2005 to September 2011. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 administrative decision of the Department of Veterans Affairs (VA) Committee on Waivers and Compromises (Committee). In July 2019, the Board remanded the matter for further development, specifically for adjudication of whether the overpayment was properly created. A September 2020 administrative decision found the overpayment had been properly created. As the Veteran did not perfect an appeal as to that issue, it is not before the Board. Entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $3,603.49 due to concurrent receipt of active pay and VA compensation benefits The Veteran had 48 drill days during Fiscal Year 2013 and 22 drill days during Fiscal Year 2014 for which he received pay. However, during this period, he also received VA compensation pay. 38 U.S.C. § 5304(c) prohibits the receipt of VA disability compensation benefits for any period for which the person receives active service pay. 38 C.F.R. §§ 3.654, 3.700. This includes active duty pay, drill, and active duty for training payments, and inactive duty for training payments made to Reservists and members of the National Guard. Thus, the Regional Office (RO) retroactively withheld monies for the drill days so the Veteran did not receive both payments. This action resulted in an overpayment of $3,603.49. The Veteran requested a waiver of the recovery of the overpayment. VA law provides that recovery of overpayment of any benefits 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). The standard “Equity and Good Conscience” will be applied when the facts and circumstances in a particular case indicate a need for reasonableness and moderation in the exercise of the government’s rights. In making this determination, consideration will be given to the following elements, which are not intended to be all-inclusive: (1) Fault of the debtor. Where actions of the debtor contribute to the creation of the debt. (2) Balancing of faults. Weighing fault of the debtor against VA fault. (3) Undue hardship. Whether collection would deprive debtor or family of basic necessities. (4) Defeat the purpose. Whether withholding of benefits or recovery would nullify the objective for which benefits were intended. (5) Unjust enrichment. Failure to make restitution would result in unfair gain to the debtor. (6) Changing position to one’s detriment. Reliance on VA benefits results in relinquishment of a valuable right or incurrence of a legal obligation. See 38 U.S.C. § 5302; 38 C.F.R. § 1.965 (a). In this case, the Committee found, and the Board agrees, that there is no evidence demonstrating that the indebtedness resulted from fraud, misrepresentation, or bad faith on the Veteran’s part. Therefore, waiver of indebtedness is not precluded if shown that it would be against the principles of equity and good conscience to require the appellant to repay the debt to the government. 38 C.F.R. §§ 1.963, 1.965. In February 2014 and February 2015 VA Forms 21-8951 Notices of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances, the Veteran was notified that records indicated he received training pay for 48 days in Fiscal Year 2013 and 22 days in Fiscal Year 2014. He was asked to return the forms, confirming whether the number of training days was correct and whether he elected to waive VA benefits to retain his training pay. The forms stated that if they were not returned, VA would assume the Veteran wished to waive VA compensation or pension for the number of training days listed on the forms. The Veteran did not return the forms. Action was subsequently taken to reduce the Veteran’s compensation benefits due to receipt of drill pay in Fiscal Years 2013 and 2014. The adjustment resulted in the creation of an overpayment in the amount of $3,603.49. As the Veteran did not notify VA of military training or return the waiver forms, he was at fault in the creation of the debt. Further, waiving recovery of the overpayment would defeat the purpose of the benefit because the Veteran was not entitled to both military training pay and VA compensation benefits at the same time. There is also no evidence that the Veteran changed position to his detriment due to his reliance upon receipt of VA benefits. To the extent the Veteran contends there is financial hardship, that factor is outweighed by the other elements of equity and good conscience. The Veteran has stated on a February 2017 Financial Status Report that his monthly net income is $5,800.00. He reported that his monthly expenses total $5,000.00. Therefore, his monthly income exceeds his expenses. The Board acknowledges the Veteran’s contentions regarding financial difficulties, including that he has minimal assets and reports credit card debt. However, as the overpayment at issue represents a valid debt to the U.S. Government, there is no reason that the Veteran should not accord the Government the same consideration that he accords his other creditors. For these reasons, the Board finds that any financial hardship the Veteran may experience from recovery of this debt is outweighed by the other elements of equity and good conscience. In this case, the Board finds that a waiver of the recovery of $3,603.49 is not warranted. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dean, 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.