Citation Nr: 21027040 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-39 033A DATE: May 4, 2021 ORDER The appeal as to whether the VA should re-issue a retroactive payment to the Veteran in the amount of $21,622, is denied. FINDINGS OF FACT 1. The Veteran has not made even a preliminary showing that VA owes him any amount of money based upon events in the 1990s. 2. The Veteran failed to request a re-issuance of the April 1996 check in a timely manner. CONCLUSION OF LAW The criteria for the re-issuance of a retroactive payment have not been met. 38 U.S.C. § 3702; VAOPGCPREC 19-95, 61 Fed. Reg. 10063 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1973 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) from a January 2015 determination by the VA's Pension Management Center. The Veteran perfected an appeal to the Board. In September 2018, he provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge. The Board remanded for further evidentiary and procedural development in June 2019 and again in December 2020. Such development has been accomplished to the extent possible, as discussed below. Historically, VA pension benefits together with special monthly pension based upon a requirement for aid and attendance benefits were awarded effective in May 1979. Pension benefits are subsistence-level payments intended to provide basic support for Veterans of a period of war who cannot maintain employment. 38 U.S.C. §§ 1502, 1503, 1521. The Veteran's pension with aid and attendance benefits was granted on account of blindness. He is also receiving disability benefits from the Social Security Administration predicated upon blindness. Because VA pension benefits are intended to provide a subsistence level of income, pension benefits are carefully calculated in light of any other income the Veteran may have. In this case, the Veteran's VA pension benefits supplement his Social Security disability payments, so that when his Social Security payments increase, his VA pension benefits are adjusted so that his overall income does not rise above the VA pension income ceiling defined by law each year. Similarly, if a VA pension recipient has earned income of any type, his VA pension benefits are adjusted so that his overall income does not rise above the pension income ceiling. The Veteran has incurred several overpayments in his pension benefits over the years, when his Social Security payments were increased without a concomitant decrease in his VA pension payments. When VA retro-actively adjusted his pension benefits, overpayments were created, through no fault of his own. Additionally, in 1992, he engaged in several months of employment at a job for the blind. He explained that the job did not work out, on account of his disability. However, the earned income changed the calculation of his pension benefits for that period of time. None of these debts, singly or together, add up to $21,000, however. Rather it appears that no more than $8,000 was overpaid on account of the Social Security disability increases together with the Veteran's earned income. The documentation is spotty, however, and does not support a reliable calculation at this point. No recoupment of these debts is shown in the contemporaneous accounting records. Rather, the available notifications provided to the Veteran with regard to these debts stated that the overpayment debts had been declared and would be recouped in the future. An April 1996 compensation and pension award document shows that the Regional Office had calculated the Veteran's pension benefits would be amended to reflect $0 entitlement as of February 1993, with a monthly benefit payment of $492 resuming in October 1993. However, it does not appear that this retroactive adjustment to his pension benefits was ever implemented. In April 1996, the VA issued the Veteran a check for $21,622. Unfortunately, the documentation which would have surrounded the check is unavailable for review. The two prior Board remands were issued partly in the attempt to discover more about the circumstances surrounding the issuance of the check. There is nothing in the Veteran's claims file explaining why the check was issued. In a May 1996 statement, the Veteran wrote that he had received a check in the amount of $21,622, which he believed represented a restoration of his pension award retroactive from October 1993. He wrote, "In as much as it was such a large amount and knowing that I still have a debt, I returned the check to the agent cashier." He then requested that his account "be audited as it appears to have some discrepancies." The file does contain a Notice of Benefit Payment Transaction Form dated in June 1996, which reflects that a returned check in the amount of $21,622, was applied to accounts receivable. A Receipt for Returned Treasury Check shows that the check was returned for "not entitled." A cryptic notation on a July 1996 form shows that the Veteran's pension benefits had been suspended in June 1996 on account of "dependent children." Handwritten on the same form is "Vet returned ck erroneously." There is no indication that the audit requested by the Veteran in May 1996 was ever accomplished. Additionally, there are multiple notations in the file that because the Veteran was visually impaired, special notification was required when contacting him. In December 2014, eighteen years later, the Veteran requested that the check in the amount of $21,622 be reissued to him. He described the payment as a retroactive pension payment which he had returned. He explained he had thought the check was a mistake because he was legally blind. He stated he believed the money was due to him, although he did not explain why he believed the money was due to him. In the January 2015 decision on appeal here, the VA's Pension Management Center informed the Veteran that the statute of limitations for this type of request had expired in his case, so that VA was unable to reissue his payment. In his January 2015 notice of disagreement, the Veteran stated that he did not know what the payment was for, but that he returned the check to avoid an overpayment. During the September 2018 hearing on appeal, the Veteran testified that he had returned the check because he did not want to create an overpayment. Also during the appeal, the Veteran's representative appeared to be making an argument to the effect that the statute of limitations should be tolled, since the VA did not provide the audit requested by the Veteran in May 1996. Pursuant to the Board's remand, a paid and due audit was prepared in January 2020. The authors of the audit noted that because the financial data at issue was so old, going back to 1992, that some of the numbers had to be estimated. They also noted that the Barring Act of 1940 imposes a statute of limitations of six years so that the date os each payment had also been estimated. The auditors concluded, however, that the amount the Veteran had been due and the amount he had been paid were correct, and that the retroactive payment of $21,622 had been correctly applied to his debt. Also in response to the Board's remand, in December 2020, the St. Paul VA Regional Office certified that the VA's Debt Management Center had no documents related to the Veteran's prior debts in their system. VA law and regulation provides the Veteran with the option to lodge an informal dispute in cases of questions involving a debt to VA. This means that the debtor writes to VA and questions whether he or she owes the debt or whether the amount is accurate. The VA is then required to review the accuracy of the debt determination as expeditiously as possible. 38 U.S.C. §§ 5302, 5314; 38 C.F.R. § 1.911. This provision has remained unchanged since prior to the Veteran's May 1996 request for an audit. Even the most cursory review of the claims file as it exists today reveals no indication that the VA provided an audit to the Veteran in 1996, and no indication that VA responded to the Veteran's May 1996 informal request. There is also no indication that the Veteran pursued the matter any further at the time, or indeed, until 2014, eighteen years later. The Barring Act was intended to relieve the Government of the need to retain and review old records for the purposes of settling old claims. Essentially, all claims, except as otherwise provided by law, are subject to a six-year statute of limitations. 38 U.S.C. § 3702. There is no basis under any provision of the law for an exemption from the six-year statute of limitations for claims involving Veterans' benefits. A VA General Counsel opinion, 19-95, applies this six-year limitation to claims based upon checks, which have been lost, stolen, cashed on a forged endorsement, or never received. 61 Fed. Reg. 10063. Essentially, the basis for the denial of this appeal rests upon the extraordinary length of time which passed between the Veteran's returning the check to VA and when he again pursued the matter. The Veteran waited nearly two decades to inquire about the resolution of the situation. During this time, critical documentation was apparently expunged from the records of the VA's Pension Management Center and the Debt Management Center, to include the reason for sending the Veteran the check in the first place. The remaining information which is still associated with his claims file is inadequate to explain the situation. The legislative purpose of the Barring Act was to avoid situations such as this one, when the evidence is extremely stale and inadequate to illuminate events which occurred many years in the past. There is no basis in the law to support issuing a new check for this large amount of money to the Veteran twenty years after he returned the original check. The records at the time reflect that the Veteran believed he was not owed the money, or at least not that particular amount of money, as evidenced by his request for an audit of his account. It is highly unfortunate that the audit was not provided, or if it was provided, that no report of it is available to review now. However, after requesting the audit, it appears the Veteran simply did nothing for twenty years. He did not follow up on his audit request, and made no further reference to the check until 2014. Given the extreme period of time which was allowed to pass, the Board rejects the argument made by the Veteran's representative that requesting an audit was enough to toll the six-year limitation of the Barring Act. Assuming that the VA indeed failed to respond to the Veteran's request, the VA failed in its regulatorily defined duty to do so. Given the number of other documents which would reasonably be expected to have been generated at the time, but that are not contained in the file, such as an explanation for why the VA cut the check for $21,622 to the Veteran in the first place, the Board is not prepared to conclusively find that VA failed in this duty. Especially if the Pension Management Center or the Debt Management Center responded to the Veteran's informal inquiry, there may be no such record in existence today. These entities have different standards for records retention than the Veterans Benefits Administration, which has maintained the Veteran's claims file over the years. A complete review of the Veteran's appeal is clearly frustrated by the absence of so many pertinent records. Nevertheless, the absence of records which would shed light upon the situation does not in any way establish that VA owed the Veteran moneyin the amount of $21,622, or a lesser amount, in 1996. The Veteran has been offered the opportunity to submit his own evidence and recollections upon many occasions. His statements regarding the situation have varied over the years, and do not paint a consistent picture, as reflected above. The Board's responsibility is to review the evidence and apply the law to the facts of the case. Guesswork is not in our purview. In sum, the Veteran has not established in any way, that he is owed this money by the VA. Furthermore, he failed to request that his case for re-issuance of the check be adjudicated in a timely manner. The appeal is denied. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Heather J. Harter, 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.