Citation Nr: 22014186 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 19-27 658 DATE: March 11, 2022 ORDER Entitlement to a waiver of debt resulting from overpayment of 38 U.S.C. Chapter 33 (Post 9/11 GI Bill) educational assistance benefits in the amount of $7,392.42 is denied. FINDING OF FACT The Veteran submitted a waiver request for the overpayment of 38 U.S.C. Chapter 33 (Post 9/11 GI Bill) educational assistance benefits in September 2018, which was more than 180 days after notification of the debt. CONCLUSION OF LAW The criteria for a timely request for a waiver of debt resulting from overpayment of education benefits in the amount of $7,392.42 have not been met. 38 U.S.C. § 5302; 38 C.F.R. § 1.963. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 2003 to April 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 decision issued by the Department of Veterans Affairs (VA) Debt Management Center (DMC). In December 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Law and Analysis 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. The threshold question for a request for a waiver of debt from overpayment is whether the waiver request was timely. A request for waiver of an indebtedness (other than loan guaranty) shall only be considered if it is made within 180 days following the date of a notice of indebtedness issued on or after April 1, 1983, by VA to the debtor. The 180-day period may be extended if the individual requesting waiver demonstrates to the Chairperson of the Committee on Waivers and Compromises 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; 38 C.F.R. § 1.963(b). In this case, the Veteran received Chapter 33 (Post-9/11 GI Bill) educational assistance benefits between August 2015 and December 2015, which included college tuition and fees, a housing allowance, and books and supplies. However, based on a change of status, an overpayment of VA educational benefits was created in the amount of $7,392.42. See February 9, 2016, notification of change of status. The Veteran has not challenged the creation or validity of the debt. In March 5, 2016, letters, the DMC notified the Veteran that he had been overpaid for VA educational assistance benefits under the Post 9/11 GI Bill. He was specifically advised that he had been overpaid in the amounts of $1,550.50 for tuition and fees, $5,666.92 for a monthly housing allowance, and $175 for books and supplies, totalling $7,392.42. He was also informed of his rights and options, including the right to request a waiver. Those letters were sent to the Veteran's last known mailing address in Temple Hills, Maryland, and were not returned as undeliverable. Nevertheless, the DMC also sent additional letters on April 1, 2016, using an updated address in Washington, D.C, that had been obtained. The letters again advised the Veteran of his rights and options, including the right to request a waiver. There is no indication that such correspondence was returned as undeliverable. See also December 2021 hearing transcript (representative acknowledged that notice letters were not returned as undeliverable) There is a presumption of regularity in the law to the effect that "[t]he presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992), (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)). While the Ashley case dealt with regularity in procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the presumption of regularity was applied to procedures at the Regional Office (RO) level. It is clear from these cases that a statement of a claimant, standing alone, is not sufficient to rebut the presumption of regularity in VA operations. See Jones v. West, 12 Vet, App. 98, 100 (1998); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). If a claimant alleges non-receipt of a VA notice letter, clear evidence to rebut the presumption of regularity "mandates not only a declaration by the appellant of non-receipt, but additional evidence to corroborate the appellant's declaration, such as an addressing error by VA that was consequential to delivery." Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007). In September 2018, the Veteran filed a request for a waiver due to financial hardship VA Form VA Form 5655 (financial status report). The request was received more than 180 days after the date of a notice of indebtedness issued in both March 2016 and April 2016, which is not in dispute. See August 2019 VA Form 9; December 2021 hearing transcript. The Veteran has asserted that he did not file the waiver request within 180 days of the March 2016 and April 2016 notification letters because he did not receive them. In this regard, he has contended that the DMC sent the notice letters to the wrong address. See e.g., August 2019 VA Form 9. He has indicated that he moved multiple times Maryland, Washington D.C., and California during that time period. He has also reported that he was hospitalized multiple times during the semester at issue. During the December 2021 Board hearing, the Veteran testified that, during the period from April 2016 and June 2016, he moved out of his apartment and forwarded his mail to his grandmother's residence through the United States Postal Service (USPS). The Veteran also indicated that he did not notify VA of his new address immediately, as he was "not receiving VA services" at the time, referring to disability and health care services. Nevertheless, as previously noted, the DMC used the mailing addresses reported by the Veteran. The burden is on the Veteran to keep VA apprised of his whereabouts, and if he does not do so, VA is not obligated to "turn up heaven and earth" to find him. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Indeed, given the fact that the letters were not returned as undeliverable, the DMC had no reason to question his current mailing address. Moreover, during the December 2021 hearing, the Veteran verified that he moved to the address in Washington D.C. in April, which is the address that was used by the DMC in the April 2016 notice letter. The Veteran also indicated that he had his mail forwarded. The Veteran further testified that he moved to Los Angeles in June 2016 and later became homeless; therefore, that subsequent change of address would not have impacted the receipt of the March 2016 and April 2016 notice letters. The Board also notes that the Veteran stated during the December 2021 hearing that it was possible that his mail had been lost or stolen. However, such statements appear to be based on conjecture and speculation. The Board further acknowledges the Veteran's statements that he was hospitalized during the semester at issue. However, the overpayment was created based on the education benefits received from August 2015 and December 2015, whereas the notification letters were sent in March 2016 and April 2016. Thus, even if the Veteran was hospitalized at any point during the semester from August 2015 to December 2015, it would have no bearing on whether the notice letters were received. Nor would it have impacted his ability to submit a waiver request within 180 days thereafter. There is no evidence other than the Veteran's own assertions that he did not receive the DMC's notice of overpayment. The record reflects that the letters were sent to the Veteran's address of record at that time, and they were not returned as undeliverable. Thus, there is no basis to rebut the presumption of regularity with regard to notification of the overpayment. Both the statute and the regulation governing the waiver of overpayments clearly require that the appellant demonstrate that an error by VA or the postal service, or some other circumstance delayed his actual receipt of the notice. 38 U.S.C. § 5302; 38 C.F.R. § 1.963(b); McCullough v. Principi, 15 Vet. App. 272 (2001). In this case, the evidence does not persuasively show that the appellant did not receive the notice of the overpayment from the DMC. The Board also acknowledges the Veteran's statements regarding personal difficulties, including depression and other health issues. However, the evidence does not show that he was incompetent or otherwise incapable of handling his affairs. See Barger v. Principi, 16 Vet. App. 132 (2002). Indeed, there are no medical records showing otherwise, and the Veteran was employed as a police officer and then as a director of security during the time period at issue. Although the Board recognizes the Veteran's current reported financial and health difficulties, the ability to address whether a waiver is warranted is predicated on a timely filed waiver request. See Narron v. West, 13 Vet. App. 223 (1999). Based on the foregoing, the Board concludes that the criteria for a timely request for a waiver of debt resulting from overpayment of education benefits have not been met. As the law is dispositive in this case, the claim must be denied based on a lack of legal entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, 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.