Citation Nr: 21023196 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-36 341A DATE: April 20, 2021 ORDER Entitlement to a waiver of recovery of an overpayment of VA educational benefits under the Post-9/11 GI Bill (Chapter 33) Transfer of Entitlement (TOE) Program in the amount of $61,085.80 is denied. FINDINGS OF FACT 1. There is no evidence of fraud, misrepresentation, or bad faith on the appellant’s part in the creation of this debt. 2. Recovery of the overpayment of Chapter 33 educational assistance benefits under the TOE program in the amount of $61,085.80 is not against equity and good conscience. CONCLUSION OF LAW The criteria for waiver of recovery of the overpayment of Chapter 33 education benefits under the TOE program in the amount of $61,085.80 have not been met. 38 U.S.C. §§ 5107, 5302 (a) (2018); 38 C.F.R. §§ 1.962, 1.963 (a), 1.965(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1994 to August 2015. The appellant is his daughter. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2016 determination of the Department of Veterans Affairs (VA). In that decision, the appellant’s request for waiver of an overpayment of Chapter 33 TOE education benefits was denied. This matter was previously before the Board in February 2020, at which time the matter was remanded for additional development; namely, to request Financial Status Reports from the appellant and Veteran and to readjudicate the claim. The Agency of Original Jurisdiction (AOJ) made these requests in April 2020. However, the AOJ did not receive the reports. The AOJ thereafter readjudicated the claim. See February 2021 supplemental statement of the case. In view of these circumstances, the Board finds that the AOJ substantially complied with the Board’s remand directives and the appeal will be decided based on the evidence of record. See 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. Overpayments created by retroactive discontinuance of benefits will be subject to recovery if not waived. 38 C.F.R. § 3.660 (a)(3). An appellant has two forms of recourse when faced with an overpayment. He or she may challenge the validity of the debt and/or request a waiver of indebtedness. 38 C.F.R. § 1.911 (c). Those are considered distinct issues but may be exercised separately or simultaneously. Id; see also Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991). In this matter, pursuant to an appeal filed in 2016, the Board issued a decision in October 2018 finding that the overpayment at issue was properly created and is valid. Accordingly, the only issue before the Board is whether the appellant is entitled to a waiver of the overpayment. The Post-9/11 GI Bill allows servicemembers to transfer unused education benefits to immediate family members. See 38U.S.C. §3319. This applies to officer or enlisted, active duty, and Selected Reserve. Qualifying immediate family members are spouses and children. 38 C.F.R. § 21.9570(b). To be eligible to transfer Chapter 33 benefits the servicemember must have completed at least six years of service and commit to an additional four years (or an additional number of years of service as determined in regulations pursuant to subsection (j)). 38 U.S.C. § 3319(b). This policy is set by the Department of Defense because this benefit is a recruiting and retention tool. In this case, in April 2013, VA informed the appellant via a Certificate of Eligibility that she was entitled to 18 months of Chapter 33 benefits as of March 2013 under the TOE program. Thereafter, in a December 2015 decision letter, VA informed the appellant that the education payments that VA made under the TOE program for her enrollment at Auburn University beginning in August 2013 had been made in error resulting in an overpayment in the calculated amount of $61,085.80 that she had to repay. The amount includes $2,500.00 for books & supplies, $20,175.80 for housing allowance, and $38,410.00 for tuition & fees. VA explained that the overpayment was due to the Veteran not meeting the required obligated service for transfer benefit eligibility. At the outset, the Board finds no evidence of fraud, misrepresentation, or bad faith on the part of the appellant in the creation of the debt. Thus, the Board turns to the question of whether collection of the debt would be against equity and good conscience. See 38 U.S.C. § 5302 (b); 38 C.F.R. §§ 1.962, 1.963, 1.965. The standard of “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. The decision reached should not be unduly favorable or adverse to either side. The phrase equity and good conscience means arriving at a fair decision between the obligor and the government. 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. Whether the actions of the debtor contributed to the creation of the debt. 2. Balancing of faults. Weighing of the fault of the debtor against that of VA. 3. Undue hardship. Whether collection would deprive the 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. Whether failure to make restitution would result in unfair gain to the debtor. 6. Changing position to one’s detriment. Whether reliance on VA benefits resulted in relinquishment of a valuable right or the incurrence of a legal obligation. 38 C.F.R. § 1.965 (a). Regarding fault, the overpayment in this case was created due to the appellant’s receipt of education benefits that were later revoked in their entirety. VA revoked the benefits based on information it received from the Department of Defense (DoD) that the Veteran did not meet his required obligated service for transfer benefit eligibility. In this regard, information from VADIR (Veterans Affairs and Department of Defense Identity Repository) shows that the transfer request date was in March 2013 and that the obligated projected end date was in March 2017. As noted above, the Veteran was discharged from active duty in August 2015. While consideration has been given to the Veteran’s assertion that he thought that he had followed the correct administrative procedures when he applied for TOE in 2010 and, as such, he thought that the additional four-year obligation for TOE eligibility began at that time, the determination for TOE eligibility is solely the province of the service department, not VA. See 38 U.S.C. § 3319; 38 C.F.R. § 21.9570. VA bears no responsibility in this determination. Accordingly, the Board concludes that the Veteran and the appellant (as both are deemed jointly and severally liable for the debt) bear responsibility for the creation of the overpayment. 38 U.S.C. § 3319 (i). Regarding the element of undue hardship, the appellant completed Financial Status Reports in January 2016 and February 2017. On both reports she reported that she was a fulltime student and had no income. She also reported that she had approximately $1100 in monthly expenses and $16,5000 in her bank account. She did not list any other asserts or debts. The only notable difference in these reports is that she reported that she was able to pay $500 a month towards the debt in January 2016, and she left that section blank in February 2017. As noted, the appellant and the Veteran are jointly and severally liable for the amount of the overpayment. Notably, a request to the Veteran to submit a Financial Status Report went unheeded, and it appears in VA’s Appeals Control and Locator System that he withdrew from his appeal the issue of debt waiver. In short, the Board finds that there is no persuasive evidence of undue financial hardship presented by recoupment of the debt. That is, there is no persuasive evidence that the appellant will be deprived of the basic necessities of life by repaying the debt. The Board also finds that recovery of the overpayment would not defeat the purpose for which benefits were intended. That is, payments were made for the appellant’s attendance at Auburn University for an enrollment period from August 2013 to August 2015 that she was not entitled to. In short, recouping overpayment of those benefits would not defeat the purpose thereof. The Board further finds that the failure of the Government to insist upon its right to repayment of the assessed overpayment would result in unjust enrichment of the appellant as she would be receiving funds which she was not entitled to. Lastly, there is no evidence that the appellant relinquished a valuable right or incurred any legal obligations resulting from reliance on VA benefits. (Continued on the next page)   For the reasons discussed above, the Board finds that the recovery of the overpayment would not be against the principles of equity and good conscience. See 38 C.F.R. §§ 1.963, 1.965. Because the preponderance of the evidence is against the claim for a waiver of recovery of the overpayment of VA benefits in the amount of $61,085.80, the benefit of the doubt doctrine is not for application and the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Kristin Haddock 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.