Citation Nr: 21026163 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-44 413 DATE: April 30, 2021 ORDER Entitlement to replacement or reissuance of a September 2009 Department of Veterans Affairs (VA) compensation check based on non-receipt is denied. FINDING OF FACT In October 2015, the Veteran reported non-receipt of a check dated September 17, 2009, in the amount of $3,532.00 and requested reissuance; this request came over six years after the issuance of the check. CONCLUSION OF LAW The Veteran’s claim based on nonreceipt of a VA compensation check dated September 17, 2009 was not timely filed and he is therefore barred from seeking entitlement to replacement or reissuance of the check. 31 U.S.C. § 3702(b); VAOPGCPREC 19-95, 61 Fed. Reg. 10063 (1996). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from May 1972 to May 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2015 decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of VA. The Veteran testified at a September 2020 hearing before the undersigned Veterans Law Judge, a transcript of which has been attached to the record. 1. Entitlement to replacement of a compensation check based on non-receipt According to the claims file, in July 2008 VA found the Veteran had received overpayment and created a debt in the amount of $2,367.50. In September 2009 VA found the Veteran was entitled to back compensation totalling $5,599.50. On September 17, 2009, VA issued a check for $3,232.00 (the back payments minus the debt), mailed to the registered payment and mailing address of the Veteran on [REDACTED]. On October 1, 2009, a monthly payment check for $243.00 was mailed to the same address. In October 2009 the Veteran reported the missing $243.00 check, which according to VA records was returned as undeliverable. There is no record of the Veteran reporting failure to receive the $3,232 until October 2015. The returned check for $243.00 was reissued as a direct deposit and placed in the Veteran’s savings account on October 28, 2009. VA records do not note that the $3,232 check was returned as undeliverable, nor do they indicate whether it was cashed by the Veteran or another party. VA records indicate the Veteran telephoned a regional office on October 21, 2015 to report the missing $3,232 check and to request reissuance. According to November 2015 correspondence as well as September 2020 hearing testimony, the Veteran claimed he never received the check nor ever lived at the [REDACTED] address, instead providing a [REDACTED] address. According to November 1990 VA records, the Veteran completed and submitted a direct deposit signup form, listing his financial institution as United Carolina Bank and listing the [REDACTED] address. While the Veteran testified that he had only ever banked with BB&T, the Board observes that BB&T acquired United Carolina in 1997. The AOJ issued an October 2015 decision stating that Treasury had notified them that the statute of limitations for making a claim on the September 2009 payment had expired. In November 2015 correspondence the Veteran disagreed with this decision and cited 38 U.S.C. 5302(a), which the Board notes deals with claims for relief of indebtedness and overpayments and does not apply to the matter at hand. At the outset, the Board finds that the issue on appeal, non-receipt of a compensation check, is an appealable claim subject to the Board’s jurisdiction. The law provides that the Secretary of VA shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. See 38 U.S.C. § 511(a). The law provides further that the jurisdiction of the Board extends to all questions in a matter which under section 511(a) is subject to a final decision on appeal by the Secretary. See 38 U.S.C. § 7104(a). The applicable regulation provides that this includes, but is not limited to, a considerable “laundry list” of subjects. See 38 C.F.R. § 20.104. Although the matter of non-receipt of a check from VA is not specifically mentioned, because the regulation includes the broad catch-all phrase “is not limited to,” it would appear reasonable to conclude that the regulation would encompass a claim where the Veteran alleges that he did not receive compensation to which he was entitled. Moreover, although VA law and regulations are not directly for application here, this case involves application of “a law that affects the provision of benefits by the [VA]” within the meaning of 38 U.S.C. § 511(a). As such, this statutory language is read by the Board as providing authority for VA to decide an issue under non-VA law and regulations where those laws and regulations affect the provision of VA benefits. Additionally, it appears from the findings and conclusions reached by VA’s General Counsel in precedent opinion VAOPGCPREC 19-95, dated July 12, 1995, that a veteran’s claim alleging non-receipt of a Treasury check in connection with the payment of VA benefits is a matter which can be addressed by VA. This decision also addressed the issue of time limitations on claims resulting from non-negotiation of veterans’ benefits checks by the payee. In pertinent part, the VA General Counsel held that the six-year limitation period under the Barring Act, 38 U.S.C. § 3702(b), is generally applicable to claims for unpaid veterans’ benefits resulting from inaction with regard to benefit checks by the payee, and is applicable as well to claims based on veterans’ checks claimed to have been lost, stolen, cashed on a forged endorsement, or never received. The General Counsel explained that section 3702(b) of the Barring Act provides that a claim against the Government presented to the Treasury’s Comptroller General under section 3702 for settlement which is not received by the Comptroller General within six years after the claim accrues is barred. The Barring Act was intended to relieve the Government of the need to retain and review old records for the purpose of settling old claims. The General Counsel added that the term “claim” had been interpreted to include an original claim for money not received, i.e., a claim on the underlying obligation liquidated by a Treasury check. On this basis, the VA General Counsel specifically found no exemption from the six-year statute of limitations of 31 U.S.C. § 3702(b)(1) applicable to obligations for which checks were drawn on Veterans Benefits Administration appropriation accounts. The General Counsel added that section 3702(b) had been strictly enforced by the Comptroller General, which authorized the Comptroller General to “settle all claims... against the United States Government,” except as otherwise provided. It was further noted by the General Counsel in precedent opinion 19-95 that the six-year limitation applied generally to such claims with limited exceptions, and that the only exceptions recognized in section 3702(b) were: where an exception was specified in Chapter 37 of Title 31, U. S.C., or another law; as to a claim by a state, the District of Columbia, or a United States territory or possession; and, in the event that a claim of a member of the armed forces accrued during war or within five years before a war begins. The General Counsel pointed out with respect to these exceptions that it could find no basis in Chapter 37 of Title 31, U.S.C., or in any other provision of law, for an exemption from the six-year statute of limitations for claims involving veterans’ benefits appropriations. The United States Court of Appeals for Veterans Claims (Court) has ruled that there is a “presumption of regularity” under which it is presumed that Government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. See Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). While the Ashley case dealt with regularity of procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court applied this presumption of regularity to procedures at the AOJ as well. In this case, VA records indicate the $3,232 check was mailed to the address specified by the Veteran in his November 1990 direct deposit form and was not noted as returned as undeliverable. A review of mailings from 1990 to 2009, as well as a 2008 Office of the Inspector General investigation, reveal the use of both the [REDACTED] and [REDACTED] addresses. The Veteran has presented no evidence to rebut the presumption of regularity other than denying ever residing at the [REDACTED] address or banking with United Carolina Bank, despite the existence of the 1990 direct deposit form containing his signature and identifying the same. While the Veteran has stated that there is no proof he ever lived at the [REDACTED] address or cashed the check in question, as a matter of law it is the Veteran who must rebut the presumption or regularity, and he has not done so. Regardless, the Board finds that the Veteran’s claim was not filed in a timely manner. For the purposes of the Veteran’s claim that he was never paid $3,232 owed to him by VA, the six-year statute of limitations imposed by the Barring Act commenced on September 17, 2009, the date a check for that amount was made payable to him. As such, the latest a claim on the underlying obligation due to non-negotiation of a check by the payee could be filed was September 17, 2015. As noted above, this limitation is also applicable to benefit checks claimed to have been lost, stolen, cash on a forged endorsement, or in the case of the Veteran, never received. The Veteran’s claim that he never received the $3,232 check, first communicated to the AOJ in October 2015, was not received within six years of the accrual of the claim. Therefore, further inquiry into whether the check went unpaid, was lost, stolen or negotiated by someone else is not relevant to the Board’s final decision. Finally, with regard to exceptions to the statute of limitations, VA General Counsel expressly stated in VAOPGCPREC 19-95 that there existed no basis in the U.S. Code, or in any other provision of law, for an exemption from the six-year statute of limitations on claims for veterans’ benefits appropriations. (continued on next page) Accordingly, pursuant to VAOPGCPREC 19-95, the Veteran’s appeal must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive of the issue before the Board, the claim is denied because of the absence of legal merit or the lack of entitlement under the law). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.