Citation Nr: 21015391 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-06 641A DATE: March 17, 2021 ORDER As an overpayment of education benefits under the provisions of section § 211 of Public Law 112-56 (2011), also known as the Veterans Retraining Assistance Program (VRAP), in the amount of $1,373.33, was not properly created, the appeal is granted. The appeal of a waiver of an overpayment of VRAP education benefits in the amount of $1,373.33 is dismissed as moot.   FINDINGS OF FACT 1. The overpayment of VRAP educational assistance benefits in the amount of $1,373.33 was due to mitigating circumstances beyond the Veteran’s control which prevented him from continuously pursuing his program of education. 2. Without a valid debt, there remains no overpayment to be waived. CONCLUSIONS OF LAW 1. The debt created by the overpayment of VRAP educational assistance benefits in the amount of $1,373.33 is not valid. Pub. L. 112-56, § 211(b). 2. The issue of entitlement to waiver of recovery of overpayment of VRAP educational assistance benefits in the amount of $1,373.33 is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.104(c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to January 1992. The case is on appeal from an April 2014 decision that notified the Veteran of an overpayment in the amount of $1,373.33 for educational assistance benefits under VRAP. In August 2018, the Board remanded the case for further consideration. 1. Whether an overpayment of education benefits under VRAP, in the amount of $1,373.33, was properly created. VRAP was a “short-lived program intended to provide certain Veterans with job retraining for various high-demand occupations.” Lacey v. Wilkie, 32 Vet. App. 71, 73 (2019). Congress terminated VA’s authority to issue payments under the program as of March 31, 2014. The program authorized eligible Veteran’s up to 12 months of retraining assistance provided by VA to pursue a program of education as defined by 38 U.S.C. § 3452(b), and on a full-time basis. See Pub. L. 112-56, § 211(b). The statute provided certain eligibility criteria, to include the type of programs of education permitted under VRAP. Nonetheless, the statute is silent as to whether the mitigating circumstances applicable to all other educational assistance programs administered by VA are applicable to Veteran’s in receipt of education benefits under VRAP. In the present case, the Veteran’s eligibility to VRAP educational assistance benefits during the time frame set forth above is not in dispute. The record reflects that VA awarded the Veteran education benefits under the program in August 2012, to attend Moberly Area Community College to begin on August 24, 2012. On March 17, 2014, the Veteran withdrew from his full-time enrollment by reason of a myocardial infarction that prevented him from continuing, or in this case, completing his desired program of education. As a result, in an April 2014 decision, VA determined that the Veteran received an overpayment in the amount of $1,373.33 for withdrawing from his full-time enrollment before the end of the winter 2014 term (i.e. May 15, 2014, as shown by a November 2013 School’s Enrollment Certification Report ). VA will not pay benefits for a course from which the eligible individual withdraws or receives a non-punitive grade (grades that do not count toward graduation) unless either the claimant withdraws because he or she is ordered to active duty; or a situation occurs in which all of the following criteria are met: (i) there are mitigating circumstances; and (ii) The eligible individual submits a description of the mitigating circumstances in writing to VA within one year from the date VA notifies the eligible individual that a description is needed, or at a later date if the eligible individual is able to show good cause why the one-year time limit should be extended to the date on which he or she submitted the description of the mitigating circumstances; and (iii) The eligible individual submits evidence supporting the existence of mitigating circumstances within one year of the date VA requested the evidence, or at a later date if the eligible individual is able to show good cause why the one-year time limit should be extended to the date on which he or she submitted the evidence supporting the existence of mitigating circumstances. Examples of qualifying mitigating circumstances include: illness of the individual or his family; family death; an unavoidable geographical transfer resulting from the individual’s employment; an unavoidable change in employment conditions; immediate family or financial obligations beyond the individual’s control that require him to suspend pursuit of the program of education in order to obtain employment; discontinuance of the course by the school; unanticipated active duty for training; or unanticipated child-care difficulties. Pursuant to the August 2018 Board remand, an audit to determine the validity of the debt was conducted in August 2019. The Committee on Waivers and Compromises (COWC) determined that as “mitigating circumstances for reductions or terminations are NOT applicable to VRAP,” the Veteran’s change in training by dropping below full-time created the overpayment in the amount $1,373.33 and, therefore, the debt was deemed valid. A supplemental statement of the case (SSOC) was issued on September 2019; however, without citing any statute or regulation in support of their determination, particularly with respect to the non-applicability of mitigating circumstances. In light of the above, the Board will first discuss and clarify whether mitigating circumstances are applicable or not to educational assistance benefits under VRAP. The Board notes that VA never promulgated regulations with respect to VRAP and its administration. In Lacey, 32 Vet. App. at 73, the United States Court of Appeals for Veterans Claims (Court) indicated that “because VA never issued any regulations or guidance interpreting the statute [Pub. L. 112-56 (2011)], there is no agency position that warrants deference.” In that case, the Court held that, in the absence of any considered agency position, and having exhausted the traditional tools of statutory construction, the pro-Veteran cannon required the Court to read the statute liberally. Thereafter, in Welcome v. Wilkie, 33 Vet. App. 77 (2020), the Court established a two-step framework whenever (1) the statutory language is silent or ambiguous; or (2) if the agency’s interpretation is based on a permissible construction or not. Step one asks whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter. If the statutory language is silent or ambiguous, however, then step two asks whether the agency’s action is based on a permissible construction of the statute. If the agency’s interpretation is based on a permissible construction, then the Court defers to it; if it is not, then the action is arbitrary, capricious, or manifestly contrary to the statute and thus unlawful. As previously noted, the statute lacks any indication that Congress intended to exclude VRAP benefits’ recipients from the provisions of the mitigating circumstances generally applicable to all educational assistance benefits administered by VA. In light of Lacey and Welcome, the Board finds that mitigating circumstances apply to the Veteran’s case. Next, the Board will address whether the debt was validly created. In April 2014, the school certifying official notified VA that the Veteran had withdrawn from his enrollment prior to the termination of the Winter 2014 term. On August 15, 2014, the Veteran submitted medical evidence indicating that on March 2, 2014, he suffered a myocardial infarction due to a right coronary artery obstruction for which he sought emergency treatment and was admitted to the Heartland VA Medical Center (VAMC). The Veteran was released on March 4, 2014. See March 4, 2014 VA treatment records. In a lay statement received on September 6, 2015, the Veteran indicated that given his health condition, and the proximity of his health complications (March 2-4, 2014) to the termination of his benefits (March 31, 2014), he dropped all classes shortly after he was released from the hospital. His statement is supported by the March 17, 2014 Moberly Community College Schedule Change Form, showing he dropped all classes around that time. In his February 2015 VA Form 9, the Veteran indicated, among other things, that he was forced to quit his program of education due to health issues stemming from his myocardial infarction. A review of the Veteran’s education file reflects that up until that time, the Veteran was fully enrolled in school since August 2012, while taking advantage of his educational assistance benefits under VRAP. See August 24, 2012; December 7, 2012; July 8, 2013; and November 27, 2013 Certificates of Eligibility for Enrollment. During that time, the record does not reflect unsatisfactory attendance, conduct, or academic progress problems. The Board finds that the Veteran’s withdrawal from Moberly Area Community College in March 2014 was justified due to mitigating circumstances. At the time of the withdrawal, the Veteran’s had just suffered a myocardial infarction for which he sought emergency treatment and was admitted to the hospital for two days. In sum, he was hospitalized due to a serious illness, which is one of the listed mitigating circumstances under the terms of the regulation. The Board further notes that the Veteran submitted written notice of the mitigating circumstances and submitted supporting medical evidence of the mitigating circumstances to VA within a year of notice of the overpayment. Accordingly, the Board finds that the mitigating circumstances have been met and the charged indebtedness in the amount of $1,373.33 was not validly created. Thus, the appeal as to this issue is granted. 2. A waiver of an overpayment of education benefits under VRAP in the amount of $1,373.33. As noted above, the Board has found that the overpayment of education benefits under the provisions of the VRAP in the amount of $1,373.33, was not properly created. Consequently, the claim for a waiver of overpayment has been rendered moot by virtue of the invalidation of the debt and the current appeal of the denial of a waiver of an overpayment must be dismissed as moot. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.104(c). RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William Pagan, Associate 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.