Citation Nr: 21015103 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-20 514A DATE: March 16, 2021 ORDER The overpayment of Department of Veterans Affairs (VA) education benefits in the calculated amount of $8,706.27 was not properly created, and to this extent the appeal is granted. Entitlement to waiver of recovery of overpayment in education benefits in the amount of $8,706.27 is moot, as no debt was owed; to this extent the appeal is dismissed. FINDINGS OF FACT 1. In November 2012, VA found the Veteran eligible for VRAP payments and paid VRAP benefits in the calculated amount of $8,706.27 for the period from March 14, 2013 to October 1, 2013. 2. In October 2013, VA found the Veteran eligible for Chapter 33 benefits and awarded him Chapter 33 benefits retroactive to March 14, 2013. 3. The overpayment of VA education benefits in the calculated amount of $8,706.27 was solely the result of VA administrative error; neither the Veteran's actions, nor his failure to act contributed to the creation of the debt. 4. The invalidation of the Veteran's debt renders moot the claim for waiver of recovery of the overpayment. CONCLUSIONS OF LAW 1. The overpayment of VA education benefits in the calculated amount of $8,706.27 was due to sole VA administrative error, such that the debt was not valid, and the overpayment was not properly created. 38 U.S.C. §§ 5112(b)(10); 38 C.F.R. §§ 3.500(b). 2. There is no question of fact or law regarding the claim seeking waiver of VA benefits in the calculated amount of $8,706.27 remaining for the Board to address. 38 U.S.C. § 7104; 38 C.F.R. § 20.104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty in the Navy from July 1989 to March 1993. He also served in the Army National Guard (ARNG) from October 3, 2001 to February 26, 2002. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a determination, dated in November 2013, of the Committee on Waivers and Compromises of the Department of Veterans Affairs (VA) Regional Processing Office (RO) in Buffalo, New York. Thereafter, the Veteran’s file was transferred to the Philadelphia, Pennsylvania RO, which is currently handling the appeal. In October 2016, a Travel Board hearing was held before the undersigned; a transcript is associated with the record. This matter was previously before the Board in April 2018, when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development; namely to conduct an audit and to readjudicate the claim. There has been substantial compliance with the Board’s April 2018 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). An overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. 38 U.S.C. § 5302; 38 C.F.R. § 1.962. The overpayment at issue involves duplicate education payments made for the Veteran’s enrollment at Omega Institute from March 14, 2013 to October 1, 2013. In November 2012, the Veteran filed an application for education benefits under the Veterans Retraining Assistance Program (VRAP) benefits on the advice of his school administrator. He applied for the benefits to pursue at Omega Institute a training program in a medical field that began March 14, 2013. VRAP is 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. See Pub. L. 112-56, Title II, § 211, 125 Stat. 713, § 211(e)(1)(B) (Nov. 21, 2011). Under VRAP, VA, in cooperation with the Department of Labor (DOL), is to provide unemployed eligible veterans between the ages of 35 and 60 up to 12 months of retraining assistance in a "high demand" occupation. Qualifications for this program include that the Veteran be unemployed, not be in receipt of VA compensation due to unemployability, and not be eligible for any other VA education benefits program (e.g. the Post-9/11 GI Bill, Montgomery GI Bill, Vocational Rehabilitation and Employer). Id. Participant veterans may pursue an approved program of education offered by a community college or technical school that leads to an associate degree or a certificate (or other similar evidence of the completion of the program of education or training). Id. Information on file in November 2012 from Veterans Affairs and Department of Defense Identity Repository (VADIR) shows that the Veteran served on active duty in the Navy from July 1989 to March 1993. It also shows that he served in the ARNG from October 2001 to March 2002. The character of service for his ARNG service was noted as “unknown”, and the section regarding the reason for separation and the authority of service was blank. In November 2012, the Veteran received a Certificate of Eligibility from VA indicating him that he was eligible for VRAP benefits effective October 1, 2012. The first VRAP payment was issued April 1, 2013. See October 2020 audit. In July 2013, the AOJ received a Notice of Change in Student Status form (VA Form 21-1999b) from a school administrator at Omega Institute informing VA that the Veteran had taken a leave of absence from May 2013 to June 2013 due to the death of his father. By letter dated in August 2013, the AOJ informed the Veteran that an overpayment in the amount of $1,564 had been created due to his absence from school from May 2013 to June 2013. The October 2020 audit shows that $1,564 was withheld from the Veteran’s VRAP payments in September 2013 to recoup the debt. In September 2013, the Veteran filed an application for Chapter 33 benefits with the help of and on the advice of his school administrator. The educational assistance program under Chapter 33 was established for "individuals who served on active duty after September 10, 2001" and was made effective in August 2009. 38 C.F.R. § 21.9500 (2018). The provisions of the Act are codified at 38 U.S.C. §§ 3301-3324 (2012) with the implementing regulations found at 38 C.F.R. §§ 21.9500-21.9770 (2018). The Veteran testified in October 2016 that the reason he applied for this benefit was that it included a basic housing allowance. In an October 2013 letter, the AOJ informed the Veteran that he had been approved for Chapter 33 benefits retroactive to March 14, 2013. He was also informed that since he was eligible for Chapter 33, he cannot be eligible for VRAP, and that VRAP must be disallowed. He was further informed that the amount that he was paid under VRAP, $8,706.27 (for the period from 3/14/13 to 9/30/13), would be deducted from his Chapter 33 benefits. The last VRAP payment was issued on October 1, 2013. See October 2020 audit. The Veteran asserts via his written statements and hearing testimony that had he known that he would have had to pay back his VRAP benefits, he never would have applied for Chapter 33 benefits in the first place. He also takes issue with the AOJ’s finding in denying his waiver request that he acted on bad faith. In this regard, he contends that he never purposely or meaningfully tried to take money from the Government that he was not entitled to. The preliminary issue of the validity of a debt is a threshold determination that must be made prior to a decision on a request for waiver of the indebtedness. See Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991). In other words, before deciding a request for waiver, VA must first consider the validity of the debt. See also 38 U.S.C. § 5314(b) (prohibiting offset of a debt from future benefit payments unless VA first makes a determination with respect to the beneficiary's dispute of existence or amount of debt). A debtor may dispute the amount or existence of a debt, which is a right that may be exercised separately from a request for waiver or at the same time. See 38 C.F.R. § 1.911(c)(1); see also VAOPGCPREC 6-98. The propriety and amount of the overpayment at issue are matters that are integral to a waiver determination. See Schaper, 1 Vet. App. at 434. For a determination that the overpayment was not properly created, such that the debt was not valid, it must be established that the appellant was either legally entitled to the benefits in question or, if the appellant was not legally entitled, then it must be shown that VA was solely responsible for the appellant being erroneously paid benefits. Administrative errors include all administrative decisions of entitlement, whether based upon mistake of fact, misunderstanding of controlling regulations or instructions, or misapplication of law. VAOPGPREC 2-90 (July 17, 1989), 55 Fed. Reg. 27,757 (1990). Sole administrative error connotes that the appellant neither had knowledge of nor should have been aware of the erroneous award. Further, neither the appellant's actions nor his or her failure to act must have contributed to payment pursuant to the erroneous award. 38 U.S.C. § 5112(b)(9), (10) (formerly U.S.C. § 3012(b)(9), (10)); 38 C.F.R. § 3.500(b)(2); see also Jordan v. Brown, 10 Vet. App. 171 (1997). In instances where the overpayment is solely due to administrative error, the date of discontinuance of payments is the date of the last payment made. 38 U.S.C. § 5112(b)(10). As noted, to qualify under VRAP, a Veteran must not be eligible for any other VA education program, to specifically include Chapter 33. See Pub. L. 112-56, Title II, § 211, 125 Stat. 713, § 211(e)(1)(B) (Nov. 21, 2011). Here, the facts show that the Veteran applied for and was found eligible under Chapter 33 in October 2013. His eligibility under Chapter 33 is not in dispute and in fact was confirmed by the ARNG in an email dated in October 2013. This email, along with a Work Product Summary in October 2013, shows that the Veteran participated in Operation Noble Eagle while serving in the ARNG. ARNG service is considered active duty for Chapter 33 benefit purposes when authorized by the President or the Secretary of Defense under 502(f) of Title 32 U.S.C. for the purpose of responding to a national emergency declared by the President and supported by Federal funds. See 38 U.S.C. § 3301(1)(C). Operation Noble Eagle, which occurred between September 11, 2001, and May 31, 2002, is recognized as qualifying service under this provision. As such, the Veteran’s eligibility under the Chapter 33 program disqualified him from VRAP. Consequently, the AOJ’s award and payment of VRAP benefits to the Veteran was made in error and is the sole reason for the creation of the overpayment. Moreover, the overpayment was not due to an act of commission or omission by the beneficiary, or with the beneficiary's knowledge. See 38 U.S.C. § 5012(b)(9). The Veteran testified that his school administrator told him that he qualified for VRAP which is why he applied. Also, at the time of the AOJ’s award of VRAP payments in November 2012, the AOJ had information from VADIR showing that the Veteran had served in the Army National Guard from October 2001 to March 2002. For reasons unclear, the AOJ determined that this service did not make him eligible for Chapter 33 benefits. This appears to be a mistake of fact. It follows that the proper effective date of discontinuance of the erroneous award once VA learned of the Veteran’s ineligibility for VRAP in October 2013, is the date of last payment which was on October 1, 2013. 38 U.S.C. § 5012(b)(10); 38 C.F.R. § 3.500(b)(2). Accordingly, the overpayment of VRAP payments in the calculated amount of $8,706.27 for the period from March 13, 2013 to October 1, 2013 is not valid. To this extent, the Veteran’s claim is granted. Accordingly, any further consideration of the Veteran’s waiver request is moot as no debt was owed; to this extent the appeal is dismissed. 38 U.S.C. § 7104; 38 C.F.R. § 20.104. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shawkey, Anne M. 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.