Citation Nr: 21010115 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-13 203 DATE: February 24, 2021 ORDER The overpayment of Veterans Retraining Assistance Program (VRAP) education benefits for the period from April 7, 2014 to May 12, 2014 in the amount of $2,472.00 is invalid. Entitlement to a waiver of indebtedness for the recovery of the overpayment of VRAP education benefits for the period from April 7, 2014 to May 12, 2014 in the amount of $2,472.00 is moot, as no debt was owed; the appeal is dismissed. FINDINGS OF FACT 1. The Veteran was enrolled full time in an approved program of education from January 2014 to April 2014 and received education benefits for that period through the VRAP. 2. An April 2014 notice of change of student status certified to VA by the educational institution reflected that there was a reduction in the Veteran’s coursework credit hours. 3. In April 2014, VA created an overpayment in the amount of $2,691.73 and modified the amount of the overpayment to $2,472.00 in June 2014. 4. VA is unable to provide a complete audit as to how the overpayment amount was calculated. CONCLUSIONS OF LAW 1. The overpayment of VRAP benefits in the amount of $2,472.00 is unable to be verified, and thus the overpayment amount of $2,472.00 is an invalid debt. VOW to Hire Heroes Act of 2011, Pub. L. No. 112-56, 125 Stat. 713, § 211 (Nov. 21, 2011). 2. The issue of a waiver of recoupment of the overpayment of $2,472.00 is moot, as no debt is owed. 38 U.S.C. § 5302; 38 C.F.R. §§ 1.962, 1.963, 1.965. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1989 to April 1993 to include additional ACDUTRA service from August 1985 to February 1986. This case was previously before the Board in June 2020, at which time the Board further remanded the issues of entitlement to a waiver of the recovery of an overpayment of VRAP benefits in the amount of $2,472.00 and the issue of the validity of the debt for further development. Specifically, the Board requested the agency of original jurisdiction (AOJ) to adjudicate on the merits the validity of the Veteran’s overpayment amount, provide a detailed accounting showing how the total overpayment was calculated, and determine the VA’s responsibility in creation of the Veteran’s debt to include administrative error. While a subsequent supplemental statement of the case did adjudicate the validity of the claimed debt and an audit detailing creation of the overpayment are of record, the AOJ did not provide an audit specific to the amount paid to the Veteran for the spring 2014 term and the debt created no did it specifically determine its responsibility in the Veteran’s debt creation. However, as the below decision finds the debt of $2,472.00 to be invalid, and the issue of waiver moot, there is no need for the development as directed by the June 2020 Board decision. See Stegall v. West, 11 Vet. App. 268 (1998). Validity of Debt An overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. See 38 U.S.C. § 5302; 38 C.F.R. § 1.962. An overpayment may arise from virtually any benefits program administered pursuant to VA law, including pension, compensation, dependency and indemnity compensation, educational assistance benefits and subsistence allowance, insurance benefits, burial and plot allowances, clothing allowance, and automobile or other conveyance and adaptive equipment allowances. See 38 C.F.R. § 1.956 (a). The Veterans Retraining Assistance Program (VRAP) was a component of the VOW to Hire Heroes Act of 2011, passed by Congress, and signed into law by the President on November 21, 2011. Pub. L. No. 112-56, 211, 125 Stat. 712 -715 (2011); 38 U.S.C. § 4100. The VRAP directed VA, in cooperation with the Department of Labor (DOL), to pay for up to 12 months of a retraining assistance in a “high demand” occupation for unemployed eligible veterans between the ages of 35 and 60 as determined by DOL and VA. Id. Authority to make payments under VRAP terminated on March 31, 2014. Pub. L. No. 112-56, 125 Stat. 713, 211(k). Participants in the VRAP must have attended a program of education on a full-time basis in order to receive up to 12 months of assistance equal to the monthly full-time payment rate under the Montgomery GI Bill-Active Duty program ($1,564 effective October 1, 2012, and $1,648 effective October 1, 2013). Pub. L. No. 112-56, 211, 125 Stat. 712 -715. Further, participants must have been enrolled in a VA-approved program of education offered by a community college or technical school, which program must have led to an Associate Degree, Non-College Degree, or a Certificate, and trained the veteran for a high-demand occupation. Id.; see 38 U.S.C. Chapter 36. “Full-time” enrollment in a professional accredited and equivalent program involving standard collegiate courses, including cooperative and external degree programs, is 14 semester hours or equivalent. 38 C.F.R. §§ 21.4270 (c), 21.4272(a). However, when the institution certifies that all undergraduate students enrolled for a minimum of 12 or 13 semester hours or the equivalent are charged full-time tuition, or considered full time for other administrative purposes, such minimum hours will establish the criteria for full-time measurement and such minimum hours will be considered full time. 38 C.F.R. § 21.4270 (c), Note 2. 1. Whether an overpayment of Veterans Retraining Assistance Program (VRAP) education benefits for the period from April 7, 2014 to May 12, 2014 in the amount of $2,472.00 was validly created. 2. Entitlement to a waiver of indebtedness for the recovery of the overpayment of VRAP education benefits for the period from April 7, 2014 to May 12, 2014 in the amount of $2,472.00. The creation of an overpayment of $2,472.00, and resultant debt, was invalid, as explained below. Here, the Veteran contends that the creation of debt in the amount of $2,472.00, stemming from an overpayment of VRAP benefits, was improper. Pertinently, in her December 2015 substantive appeal (form 9), the Veteran argued that the total debt amount is incorrect. The record shows that the Veteran was approved for VRAP benefits at her approved school of choice in January 2014. The January 2014 correspondence also informed the Veteran that she was approved for a monthly rate in the amount of $1,648.00 for the period beginning on January 16, 2014 and ending on March 31, 2014. She was also informed that she had 5 months and 16 days of benefits remaining as of March 31, 2014, and that she would need to use these benefits by April 1, 2014, as that is when the VRAP ended. This letter also informed her that: (1) she would not receive a full month of benefits if she was not enrolled for the entire month; (2) VRAP benefits can only be paid for full-time enrollment; and (3) VA would not pay for courses she did not attend, courses from which she withdrew, and courses completed but for which she received a grade that would not count toward graduation. She was advised to promptly notify her school’s veterans certifying official and VA if there was any change in her enrollment and informed that she is responsible for all debts resulting from changes in enrollment. For the appeal period in question, the record shows that the Veteran enrolled in the Wisconsin Indianhead Technical College under the Administrative Professional certification program. On January 20, 2014, VA received Form 22-1999 which calculated the Veteran’s enrolled credit hours and determined she was a full time student. As the Veteran’s enrollment for credit hours overlapped, the formula for non-standard terms was used to determine her enrollment status. On January 22, 2014, VA awarded the Veteran $1,648.00 for the period of January 16, 2014 to April 1, 2014. On March 3, 2014, VA received notice of an increase of credit hours (to total 6 hours of half-time training) for the term of January 13, 2014 to May 14, 2014. On March 7, 2014, VA awarded the Veteran $1648.00 for the period of March 4, 2014 to April 1, 2014. Additionally, the Veteran was awarded a lump sum of $494.40 for the term of April 1, 2014 to April 9, 2014 to ensure she was able to complete her current enrollment without interruption of benefits. The Veteran was also awarded a lump sum of $659.20 for the period of May 1, 2014 to May 12, 2014. On April 16, 2014, VA received VA Form 22-1999 notifying VA that the Veteran had withdrawn from a course which brought her course status to three-quarter time (less than full time) for the period of January 13, 2014 to May 14, 2014. A subsequent May 2014 VA Form 22-1999 detailed that the Veteran was again reduced in credit hours by two hours from the period of January 13, 2014 to February 14, 2014 due to unsatisfactory performance which brought her course status to half-time (less than full time). There is no debate that the Veteran received benefits at the rate of a full time student for the spring 2014 semester. According to an August 2020 audit prepared by VA, the Veteran was paid a grand total of $6,921.60 for the period of January 16, 2014 to March 21, 2014. What is unverified is the overpayment amount, or the amount paid to the Veteran which was unearned after her course credit status dropped to less than full time. The August 2020 audit detailed that after the Veteran’s April 2014 course withdrawal, a debt of $2,691.73 was created. However, the audit similarly detailed that the calculation used to determine the debt amount was unavailable as it was done after the VRAP program ended. As noted by several Board remands, the Debt Management Center (DMC) first notified the Veteran in May 2014 that she was paid $2,691.73 more than she was entitled to. A June 2014 decision on waiver of indebtedness determined that the Veteran had an overpayment in the amount of $2,472.00. The record further reflects that in April 2014, the Veteran’s approved educational institution contacted VA to question the amount of overpayment as their own calculations showed the Veteran received only $1,977.60 in overpayment. To date, the formula or calculation used to determine the Veteran’s total amount of overpayment has not been produced or determined. The Board notes that both the June 2020 and the June 2019 Board remand requested a detailed audit of how VA calculated the Veteran’s overpayment without success. Of note, the August 2020 audit which detailed payments made to the Veteran admitted that there was “no audit in the file for [the overpayment amount]” as the amount was calculated outside of the VA internal system due to the VRAP program ending in April 2014. As several attempts to determine the correct amount of the Veteran’s overpayment have been fruitless, and considering that there is apparently no record of how the overpayment was calculated, the Board cannot find that the overpayment is valid. Although the VA has detailed records of benefits paid to the Veteran, the VA has failed to maintain accurate records concerning what was paid to the Veteran and her educational institution for the spring 2014 semester versus what was owed at the time of the Veteran’s status change. The fact that neither the DMC, the committee on waiver indebtedness, nor the educational institution can determine the proper amount supports the finding of a lack of accurate record keeping. Furthermore, the Board notes that the August 2020 audit found multiple payments made in error to the Veteran during the spring 2014 semester, and without a proper audit, it is unable to determine how much of the overpayment was created because of administrative error. In summation, the Board simply cannot find a debt against a Veteran is valid without a detailed finding as to how the debt was created. Therefore, the Board finds that the debt is invalid, and the appeal is granted. Because the overpayment was not valid, the Veteran did not owe a debt based on it. Thus, the issue of whether a waiver is warranted is moot. See 38 U.S.C. § 5302; 38 C.F.R. §§ 1.962, 1.963, 1.965. Kelli A. Kordich 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.