Citation Nr: 21024733 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-09 478 DATE: April 26, 2021 REMANDED The matter of whether a debt in the amount of $5,128.15 for payment of educational assistance benefits under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill) was properly created is remanded. REASONS FOR REMAND The Veteran served in the Air National Guard of the United States from December 1999 to February 2020. His DD Form 214 reflects that he was serving on active duty as a member of the Active Guard Reserve under the authority of 32 U.S.C. § 502(f) for the entirety of this period of service. The Veteran had additional service in the United States Army Reserve, which service included a period of active duty for training from February 7, 1993, through June 18, 1993. This appeal to the Board of Veterans’ Appeals (Board) arose from a July 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO notified the Veteran that due to a change in enrollments, VA had paid more in Chapter 33 educational assistance benefits than the Veteran was entitled to, creating an overpayment in the amount of $5,128.15. The Veteran disagreed with the validity of the debt and perfected an appeal of that issue to the Board. Notably, on his VA Form 9 (Appeal to the Board of Veterans’ Appeals), the Veteran requested a Board videoconference hearing before a Veterans Law Judge. The record reflects that the Veteran was scheduled for a Board hearing to be held on March 27, 2019. Although the Veteran indicated that he would attend the hearing on that date, he failed to report for the scheduled hearing. As good cause was not shown for why the Veteran failed to report for his hearing and he has not otherwise requested that the hearing be rescheduled, the Board will proceed as though the hearing request has been withdrawn. Validity of the Debt At issue in this case is whether the debt in the amount of $5,128.15 for payment of educational assistance benefits under Chapter 33 was properly created. In this regard, the Board points out that an overpayment debt is created when VA determines that a beneficiary or payee has received monetary benefits to which he was not entitled. See 38 U.S.C. § 5302; 38 C.F.R. §§ 1.911, 1.962. A claimant has the right to dispute the existence and amount of the debt. 38 U.S.C. § 501; 38 C.F.R. § 1.911(c). In order for the Board to determine that the overpayment was not properly created, such that the debt was not valid, it must be established that the appellant was 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. 38 C.F.R. § 21.9695(b) (providing that an overpayment of educational assistance paid to an eligible individual constitutes a liability of that individual unless the overpayment results from an administrative error or an error in judgment). In the instant case, the agency of original jurisdiction (AOJ) has determined that the Veteran was overpaid Chapter 33 educational assistance benefits in the total amount of $5,128.15. Specifically, it was determined that because the Veteran was Active Guard Reserve for the period from September 1, 2001, through July 9, 2015, he was not entitled to a monthly housing stipend in connection with his receipt of Chapter 33 educational assistance benefits. See 38 U.S.C. § 3313(j) (providing generally that individuals are not entitled to a monthly housing stipend under Chapter 33 during periods that they are on active duty). It was also noted that prior to October 1, 2011, the Post-9/11 GI Bill did not authorize a stipend for books and supplies for individuals on active duty. See The Post 9/11 Veterans Educational Assistance Improvements Act of 2010, Pub. L. No. 111-377, § 103 (allow eligible individuals on active duty to receive the books and supplies stipend, effective October 1, 2011, in the same manner as individuals not on active duty). The AOJ then explained that because it had been determined the Veteran was paid a monthly housing allowance for a period of schooling from October 12, 2009, to January 10, 2010, and from May 6 to June 30, 2015, as well as a stipend for books and supplies for schooling prior to October 1, 2011, he had been overpaid Chapter 33 educational assistance benefits. Specifically, the AOJ determined that the Veteran had been overpaid housing benefits in the amounts of $3,730.88 (for the term running from October 12, 2009, to January 10, 2010) and $1106.60 (for the term running from May 6 to June 30, 2015), as well as $266.69 for books and supplies (for the term running from October 12, 2009, to January 10, 2010). Notably, for the term running from October 12, 2009, to January 10, 2010, it was stated that the Veteran was attending Everest University, an online institution. In disagreeing with the debt creation, the Veteran reported that he had never attended Everest University and had never received any of the funds specified in the debt notification letter. The Veteran stated that during the time period in question, he was enrolled at Saint Leo University and was using tuition assistance to fund his education. He further advised that there was another veteran with his same name, but different social security number and address, whose information had been associated with his account. Regarding the Veteran’s assertions, the Veteran’s claims file contains an “Enrollment Certification” received by VA in October 2009 showing that Everest University had certified that a student with the same name as the Veteran was enrolled in an undergraduate program for the term beginning October 12, 2009. Notably, although the name is the same as the Veteran’s, the address and VA file number are different. Also of record in the Veteran’s 2009 application for VA education benefits, in which he applied for Chapter 33 educational assistance benefits for a program of study at Saint Leo University, beginning in August 2009. Notably, on that application, the Veteran provided the routing and account numbers for a Citibank checking account. The record then shows that in January 2016, the AOJ sought to verify with the finance department payment of Post-9/11 GI Bill benefits to the Veteran prior to January 2015, noting that there was no evidence that the Veteran had been issued Post-9/11 GI Bill payments for the term running from October 12, 2009, to January 10, 2010. In response, a finance administration specialist stated that payments were made to the Citibank account listed on the Veteran’s 2009 application for VA education benefits. Attached to the response were printouts from The Treasury Check Information System (TCIS) showing the following payments to the Veteran, made via direct deposit to a Citibank account: $266.69 on November 12, 2009; $796.48 on November 12, 2009; $1,257.80 on December 1, 2009; $1,257.60 on December 31, 2009; and $419.20 on February 1, 2010. Notably, the “Payee ID” matches the social security number of the Veteran and the account and routing numbers matches those provided by the Veteran on his 2009 application for VA education benefits. Based on the information received, the AOJ, in a January 2016 statement of the case (SOC), determined that the Veteran’s debt in the total amount of $5,128.15 was validly created. In his VA Form 9, the Veteran continued to express disagreement with the creation of the debt. Specifically, the Veteran disputed ever having an account with Citibank or receiving the payments for housing and books and supplies for the term running from October 12, 2009, to January 10, 2010. The Veteran noted that VA had erroneously associated another veteran’s enrollment certification with his file and questioned how payments made to or on behalf of that other veteran ended up in an account attributed to him. Upon review of the evidence, the Board finds that further development is required before it can reach the question of whether the debt was validly created. At the outset, the Board notes that there is some discrepancy in the record with regard to the total debt calculated. Specifically, the AOJ has stated that the Veteran was overpaid housing allowance benefits in the amounts of $796.48, $1,257.60, $1,257.60, $419.20, $503.00, and $603.60, for a total debt of $4861.48. The Board, however, calculates these amounts to total only $4,837.48. It appears that the indicated payment of $419.20 on February 1, 2010, is what has caused the discrepancy. Indeed, although the $419.20 matches that which was obtained from TCIS, an audit worksheet in the Veteran’s file shows a payment of $443.20. Given these varied sums, the Board finds that a remand is necessary for the AOJ to resolve the discrepancy in the payment amounts and clarify the total overpayment and resulting debt charged to the Veteran. The matter must also be remanded for the AOJ to consider whether VA was solely responsible for the Veteran being erroneously paid benefits. Read liberally, the Board finds that the Veteran raised the issue of administrative error in his VA Form 9. Further, it is clear that the Veteran never attended Everest University and that VA erred in processing that enrollment under the Veteran’s name. Additionally, the Board notes that the record also contains an “FET Master Record” report pertaining to the payment of Post-9/11 GI Bill benefits. This record contains the Veteran’s name and housing stipend payment information for the term beginning in October 2011. Although the portion of the social security number listed matches the Veteran’s last four digits, the middle two digits do not match that of the Veteran’s social security number. Despite all of this, the AOJ gave no consideration to administrative error. Indeed, the SOC does not even cite to 38 C.F.R. § 21.9695. Further, in consideration of the arguments made by the Veteran, the Board finds that, to the extent possible, the AOJ should attempt to verify that the bank account to which the payment of Post-9/11 GI Bill benefits were deposited was in fact the property of the Veteran at the time that the deposits were made. Although the information contained in the TCIS printouts matches that which was provided by the Veteran, the Veteran has maintained that he never had a checking account with Citibank. Given the conflicting evidence of record and the obvious confusion by VA regarding two veterans with the same name, the Board finds that every effort should be made to verify the accuracy of the information and evidence of record. The Veteran is also invited to submit evidence, such as an official letter from Citibank, documenting that he was not a legal account holder with Citibank and 2009-2010. The matter is REMANDED for the following action: 1. Undertake appropriate development to determine whether the bank account referenced in the TCIS printouts, to which the payment of Post-9/11 GI Bill benefits were deposited in 2009 and 2020, was the property of the Veteran at the time the deposits were made. All inquiries made and responses received must be documented in the claims file. 2. Resolve the discrepancy in the payment amounts and clarify the total overpayment and resulting debt charged to the Veteran. Specifically, it must be determined whether a housing allowance paid on February 1, 2010, was in the amount of $419.20 (as reflected on the TCIS printouts and in the SOC) or $443.20 (as reflected on the audit worksheet). 3. After completing the above-requested actions, and any additional action(s) deemed warranted, adjudicate the claim on appeal. As part of that adjudication, the AOJ must consider whether VA was solely responsible for the appellant being erroneously paid benefits. See 38 C.F.R. § 21.9695(b) (providing that an overpayment of educational assistance paid to an eligible individual constitutes a liability of that individual unless the overpayment results from an administrative error or an error in judgment). If the AOJ determines that any portion of the overpayment was not due to administrative error, the AOJ must set forth specific reasons for its conclusion in that regard. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, 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.