Citation Nr: 21021567 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 18-46 076A DATE: April 13, 2021 ORDER The request for a waiver of indebtedness resulting from an overpayment of 38 U.S.C. Chapter 30 (Chapter 30) educational assistance benefits in the calculated amount of $3,077.25 was not timely filed; the appeal is denied. FINDINGS OF FACT 1. In a letter dated December 6, 2012, the Agency of Original Jurisdiction (AOJ) informed the Veteran that she had been overpaid for VA educational assistance benefits under Chapter 30 in the amount of $3,077.25 because she had withdrawn from all 18 clock hours per week for the school term from January 9, 2012, to March 30, 2012, effective January 30, 2012. 2. In a December 10, 2012, letter from the Debt Management Center (DMC), VA notified the Veteran of the overpayment in the amount of $3,077.25 and this letter further informed the Veteran of how to dispute the debt and request a waiver. 3. On January 16, 2018, VA received the Veteran’s Financial Status Report (VA Form 5655), or request for a waiver of the debt resulting from an overpayment of Chapter 30 educational assistance benefits, which was received by VA more than 180 days after notification of the debt. CONCLUSION OF LAW The request for a waiver of indebtedness resulting from an overpayment of Chapter 30 educational assistance benefits in the calculated amount of $3,077.25 was not timely filed. 38 U.S.C. § 5302; 38 C.F.R. §§ 1.963, 1.965. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty from April 2002 to December 2002. The Veteran originally requested a Board hearing at the local Regional Office (RO) in the October 2018 Substantive Appeal to the Board (VA Form 9). However, she withdrew this hearing request in multiple written statements in November 2019. Accordingly, any request for a hearing is considered withdrawn. See 38 C.F.R. § 20.702(e). The Veteran requests a waiver of indebtedness of VA education benefits she received for the Spring 2012 school term, when she attended Blue Cliff College, and which resulted in an overpayment of Chapter 30 benefits in the amount of $3,077.25. An overpayment is created when VA determines that an individual has received payments in excess of the amount due or to which he or she is entitled. 38 C.F.R. § 1.962. The debtor may challenge the validity or amount of the debt owed and may apply for a waiver of a debt found to be valid. 38 C.F.R. §§ 1.911(c), 1.963. In this case however, the threshold issue is whether the Veteran’s request for waiver of indebtedness was filed in a timely manner. Generally, when the notice of indebtedness was issued on or after April 1, 1983, a request for waiver of indebtedness shall only be considered if made within 180 days following the date of the notice of indebtedness issued to the debtor by VA. See 38 C.F.R. § 1.963. The 180-day period may be extended if the individual requesting waiver demonstrates to the Chairperson of the Committee that, as a result of an error by either VA or the postal authorities, or due to other circumstances beyond the debtor’s control, there was a delay in such individual’s receipt of the notification of indebtedness beyond the time customarily required for mailing (including forwarding). If the requester does substantiate that there was such a delay in the receipt of the notice of indebtedness, the Chairperson shall direct that the 180-day period be computed from the date of the requester’s actual receipt of the notice of indebtedness. 38 U.S.C. § 5302; 38 C.F.R. § 1.963(b). The facts are not in dispute. The record shows that VA processed and disbursed Chapter 30 benefits to the Veteran for the Spring 2012 semester based on the certification from the Veteran’s school that she was attending 18 clock hours per week for the school term from January 9, 2012, to March 30, 2012. Thereafter, the school informed VA that she had withdrawn from all 18 clock hours, effective January 30, 2012. Therefore, the AOJ informed the Veteran in a December 6, 2012, letter that she had been overpaid for VA educational assistance benefits under Chapter 30 in the amounts of $3,077.25. Furthermore, the DMC sent the Veteran a letter, dated December 20, 2012, informing her of the overpayment in the amount of $3,077.25 for this this school term. This letter further informed the Veteran of how to dispute the debt and request a waiver. The record shows that this letter was sent to the Veteran’s last known address at the time, and the evidence does not show that this letter was returned to VA as undeliverable. In fact, the Veteran acknowledged in the June 2018 Notice of Disagreement (NOD) and the October 2018 VA Form 9 that she received the December 20, 2012, letter from the DMC. Nonetheless, the record does not show that she filed a request for a waiver of the overpayment of the Chapter 30 educational assistance benefits until January 16, 2018. On this date, VA received the Veteran’s VA Form 5655, or request for a waiver of the debt resulting from an overpayment of Chapter 30 educational assistance benefits. This request was received by VA approximately five years and 27 days after the notification of the debt, or more than 180 days after the Veteran was sent the December 2012 debt letter. Initially, the Board also notes that the Veteran has not contended, and the record does not reflect, that the debt in question was not valid or that it was calculated incorrectly. Furthermore, the Veteran does not assert that she filed the January 2018 waiver request in a timely manner, or within 180 days from the December 2012 notification of the debt. Rather, in the June 2018 NOD and the October 2018 VA Form 9, she asserted that she delayed filing for a waiver request until January 2018, even though she was notified of the debt in December 2012, because she was waiting for the Social Security Administration (SSA) to determine whether she was considered disabled and entitled to Social Security Disability Insurance (SSDI) benefits. She noted that the SSA did not determine that her disability was permanent until August 2013. She asserted that she was unable to prove an inability to pay the debt from the VA educational assistance benefits until she was entitled to SSA benefits. Specifically, she contended that there was no possible way of proving a complete inability to continue on with school or a job within 180 days when it took over two years to prove to the SSA that she could never work again, was completely unable to be gainfully employed, and to pay this debt. While the Board acknowledges and is sympathetic to the Veteran’s contentions, it determines that it cannot grant the claim on appeal, as all of the evidence shows that her January 2018 VA Form 5655, or request for a waiver of the debt resulting from an overpayment of Chapter 30 educational assistance benefits, was received after the deadline to apply for such a waiver had passed. Specifically, the Veteran acknowledges that she received the December 20, 2012, letter that informed her of the amount of debt and the ways to request a waiver. This letter also informed her that she had 180 days to request such a waiver. The Veteran also acknowledges that she did not submit the January 2018 waiver request until more than five years since receiving the notice of the debt. Thus, while the Board is sympathetic to the Veteran’s contentions as to why her waiver request was filed after the deadline, in the absence of her failing to receive the notice of the debt in a timely manner, there is no means by which to extend the 180-day deadline for filing a request for a waiver of that debt. VA’s ability to address whether a waiver is warranted is predicated on a timely-filed waiver request. See Narron v. West, 13 Vet. App. 223 (1999). Based on the foregoing, the Board finds that the request for a waiver of indebtedness resulting from an overpayment of Chapter 30 educational assistance benefits in the amount of $3,077.25 was not timely filed. As the law is dispositive in this case, the claim must be denied based on a lack of legal entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hodzic, 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.