Citation Nr: 21041923 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-43 940 DATE: July 10, 2021 ORDER The appeal of entitlement to a waiver of the recovery of an overpayment of VA benefits in the amount of $28,389.40, to include whether the waiver request was timely received is denied. FINDINGS OF FACT 1. On November 14, 2014, the VA Debt Management Center (DMC) issued a letter notifying the Veteran of an overpayment of VA benefits in the amount of $28,389.40 and of his right to request a waiver of the debt within 180 days. This letter was sent to his address of record and was not returned as undeliverable. 2. In March 2017, more than 180 days after notification of the overpayment at issue, the DMC received correspondence from the Veteran wherein he requested waiver of the overpayment. CONCLUSION OF LAW The Veteran's request for a waiver of the recovery of an overpayment of benefits in the amount of $28,389.40 was not timely filed. 38 U.S.C. § 5302 (a) (2012); 38 C.F.R. § 1.963 (b) (2) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from January 1973 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 decision of the Department of Veterans Affairs (VA) Committee on Waivers and Compromises. Entitlement to a waiver of the recovery of an overpayment of VA benefits in the amount of $28,389.40, to include whether the waiver request was timely received. The Veteran contends that he is entitled to a waiver of the recovery of overpayment of VA benefits because he was unaware of the accumulation of debt during his period of incarceration. The Board notes that he contends that his monthly VA payments were mailed to the incorrect address during his incarceration. However, he has not denied receiving the November 2014 DMC letter notifying him of the debt that had accumulated. A request for waiver of a debt other than for loan guaranty shall only be considered if made within 180 days following the date of a notice of the indebtedness to the debtor. The 180-day period may be extended if the individual requesting waiver demonstrated to the Chairperson of the Committee that, as a result of an error by either VA or the postal authorities, or due to other circumstances beyond the debtor's control, there was a delay in such individual's receipt of the notification of indebtedness beyond the time customarily required for mailing, including forwarding. If the requester does substantiate that there was such a delay in the receipt of the notice of indebtedness, the Chairperson shall direct that the 180-day period be computed from the date of the requester's actual receipt of the notice of indebtedness. 38 U.S.C. § 5302 (a); 38 C.F.R. § 1.963 (b) (2). Here, a November 14, 2014 letter, sent to the Veteran's then latest address of record at a federal correctional institution, notified him of an overpayment of VA benefits in the amount of $28,389.40. This letter also informed the Veteran of the right to dispute the debt and to request a waiver and stated that information regarding these options was included in the enclosed document entitled "Notice of Rights and Obligations." The enclosed document notified him of the requirement to submit any request for a waiver of the debt within 180 days of the date of notice of the debt. The document entitled "Notice of Rights and Obligations" is not included in the claims file. However, the November 14, 2014 letter clearly noted that the document was enclosed. Furthermore, the Committee noted in its May 2017 decision that the DMC's Centralized Accounts Receivable Online System (CAROLS) reflected that the Veteran had been notified of his waiver rights in the November 2014 letter. The Veteran has not contended that he did not receive the November 2014 letter notifying him of the debt and of his right to request a waiver within 180 days of the date of notice of the debt. Furthermore, as noted above, the notification letter was mailed to the last known address provided by the Veteran and there is no evidence in the claims file to reflect that the letter was returned as undeliverable to the address on record. There has been no document of record mailed to that address that has been returned as undeliverable. Applying the presumption of administrative regularity, the Board concludes that the November 2014 letter contained adequate notice of the need to request a waiver of the debt within 180 days. See 38 U.S.C. § 5104 (a); Kyhn v. Shinseki, 716 F.3d 572, 577 (Fed. Cir. 2013) (noting that application of the presumption of administrative regularity is proper "where the presumption of regularity [is] premised upon independent legal authority"); see also Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001) (presuming VA officials acted consistently with their legal duty under 38 U.S.C. § 5104 (a) to mail the Veteran notice of appeal rights). VA need only mail notice to the last address of record for the presumption to attach. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). This presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). An allegation of non-receipt, by itself, is insufficient to rebut the presumption of regularity. Id. Therefore, the Board finds that the November 2014 letter was sent to the Veteran's address of record at that time and was not returned as undeliverable, and he has not advanced any arguments to rebut the presumption of regularity. The Board therefore concludes that the presumption of regularity has not been rebutted and thus the Veteran received notice of the debt. See 38 C.F.R. § 3.1 (q) (2020) (notice means written notice sent to a claimant or payee at his or her latest address of record). Moreover, he has not demonstrated that notice of the debt was delayed as a result of an error by the postal authorities or due to other circumstances beyond his control. Thus, it must be presumed that the November 2014 letter was properly sent by the DMC and received by the Veteran. The Veteran's request for a waiver was received in March 2017. No correspondence regarding the debt was received from the Veteran following the November 2014 notification letter prior to March 2017. The law is clear that a request for a waiver of a debt must be made within 180 days following the date of notice of the debt. The fact that the Veteran's waiver request was not received until March 2017 (i.e., more than 180 days following the November 2014 letter which provided notice of the debt) forecloses eligibility for a waiver. Accordingly, the Veteran's request was not timely filed, and this appeal is denied. 38 C.F.R. § 1.963 (b) (2). MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.