Citation Nr: 21032017
Decision Date: 05/25/21	Archive Date: 05/25/21

DOCKET NO. 16-30 329
DATE:  May 25, 2021

ORDER

The issue of whether the overpayment of educational assistance benefits under Chapter 33, Title 38, United States Code (Chapter 33 or Post-9/11 GI Bill) in the amount of $1,878.28 for tuition and fees was properly created is dismissed. 

FINDING OF FACT

On August 28, 2020, following certification of the appeal to the Board of Veterans' Appeals (Board) and prior to the promulgation of a decision in the appeal, VA received written notification from the Veteran's representative that the Veteran requested to withdraw the issue on appeal.

CONCLUSION OF LAW

The criteria for withdrawal of the substantive appeal on the issue of whether the overpayment of educational assistance benefits under Chapter 33 in the amount of $1,878.28 for tuition and fees was properly created have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from April 1998 to July 1998 and from April 2007 to September 2013.

In her June 2016 Substantive Appeal to the Board (VA Form 9), the Veteran indicated that she wanted to appear at a Board hearing via videoconference. However, she later withdrew that request in an August 2020 statement. 38 C.F.R. § 20.704(e). Thus, there is no hearing request pending at the present time.

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 19.55. 

The Veteran's case involves an overpayment of VA educational assistance benefits. An overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. See 38 U.S.C. § 5302; 38 C.F.R. § 1.962. An overpayment may arise from virtually any benefits program administered pursuant to VA law, including pension, compensation, dependency and indemnity compensation, educational assistance benefits and subsistence allowance, insurance benefits, burial and plot allowances, clothing allowance, and automobile or other conveyance and adaptive equipment allowances. See 38 C.F.R. § 1.956(a).

The preliminary issue of the validity of a debt is a threshold determination that must be made prior to a decision on a request for waiver of the indebtedness. See Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991). In other words, before deciding a request for waiver, VA must first consider the validity of the debt. A debtor may dispute the amount or existence of a debt, which is a right that may be exercised separately from a request for waiver or at the same time. See 38 C.F.R. § 1.911(c)(1); see also VAOPGCPREC 6-98. The propriety and amount of the overpayment at issue are matters that are integral to a waiver determination. See Schaper, 1 Vet. App. at 434.

Following certification of the appeal to the Board and prior to the promulgation of a decision in the appeal, VA received a written notification from the Veteran's representative in August 2020 that the Veteran requested to withdraw the education issue on appeal. Specifically, the Veteran's representative noted that the matter was resolved in November 2017 when Veteran's request for a waiver of the recovery of overpayment of Chapter 33 benefits was granted by VA. The record shows that in November 2017, the Debt Management Center granted the Veteran's request for a waiver of the Chapter 33 debt, which included the overpayment of tuition and fees in the amount of $1,878.28. As noted above, the validity of a debt is a separate issue from the request for waiver of the indebtedness. As the Veteran has withdrawn the issue of the validity of this debt, and the record reflects that this is the only matter currently on appeal, there are no allegations of errors of fact or law for appellate consideration. The Board does not have jurisdiction to review this claim, and the appeal is therefore dismissed.

 

 

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.