Citation Nr: 22015071 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 19-06 201A DATE: March 16, 2022 ORDER The request for waiver of the overpayment of Department of Veterans Affairs (VA) pension benefits in the amount of $18,580 was timely filed; to this extent only, the appeal is granted. FINDINGS OF FACT 1. VA has indicated the Veteran's request for waiver of overpayment of VA pension benefits in the amount of $18,580.00 was received more than 180 days after he was notified of the debt. 2. The record does not include any evidence that the Veteran was notified of the $18,580.00 debt or notified of his due process rights, to include notification of the 180 day requirement for filing a waiver request. CONCLUSION OF LAW The Veteran's request for a waiver of recovery of the overpayment of VA pension benefits in the amount of $18,580.00 is timely. 38 U.S.C. § 5302(a); 38 C.F.R. § 1.963(b)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Army from February 1969 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 decision by the VA Committee on Waivers and Compromises (COWC), which denied the Veteran's waiver request finding it had not been timely filed. The Veteran provided hearing testimony before the undersigned in December 2021. A transcript of that hearing is within the Veteran's claims file. At the hearing, an attorney who is not accredited to represent veterans before the Board submitted a VA Form 21-22a. The attorney was informed of the accreditation requirement and appeared at the hearing, although not in a representative capacity. The Veteran indicated at the time that he wished to revoke the representation of his previous Veterans Service Organization (VSO). In February 2022, the Board wrote to the Veteran seeking clarification as to his wishes for representation. This letter allowed 30 days for a response. The letter indicated that if the Board did not receive a response, it would assume the Veteran wished to proceed with his appeal unrepresented. The Veteran did not respond. Thus, he is now deemed unrepresented before the Board. Moving to the merits of the Veteran's appeal, the Veteran is in receipt of VA pension benefits. In January 2015, after learning of unreported Social Security Administration (SSA) income, the Regional Office (RO) wrote to the Veteran regarding his pension benefits. The RO explained that it had information indicating both the Veteran and his spouse received $0 from SSA monthly, but that it had learned he began receiving SSA income in February 2011 and his spouse began receiving it in February 2012. The RO informed the Veteran of its proposal to reduce the Veteran's pension benefits since the income threshold was shown to have been exceeded. This would be a retroactive action back to the date the Veteran and his spouse began receiving SSA benefits. An August 2015 letter notified the Veteran that the proposed action was taking place. A $44,507 debt resulted from this retroactive reduction in benefits and the Veteran was notified of this debt by the VA Debt Management Center (DMC) in September 2015. He requested a hearing, which was held in August 2016. At this time, the Veteran informed the RO that he and his spouse had separated. The RO explained to him that action would need to be taken to adjust the pension reduction as the spouse would be removed from his award and her income would be removed from his household income calculation. In a letter to the Veteran in August 2016, the RO notified him of the proposal to remove his spouse from his award effective April 1, 2004, and remove her SSA income, which was being counted effective February 1, 2012, from his income calculation. The Veteran was informed that he had 60 days to provide information as to why this change should not take place. A more detailed letter listing every year the change would occur was sent to the Veteran in January 2017. In March 2017, the Veteran was notified that the proposed change was taking place. The Veteran was informed that this would result in an overpayment and the Veteran would be separately notified of the amount. An internal document in the claims file ("Award Print ") shows the debt amount was now calculated to be $18,580.00. There is no indication, however, that the Veteran was notified of this debt or his due process rights, to include the 180-day time limit for filing a waiver request. There is no letter from DMC or any other VA office in the claims file that includes this information. The Veteran filed a Financial Status Report (FSR) in March 2018 and requested a waiver. He again requested a waiver in May 2018 and referenced the January 2017 letter. The Board has reviewed COWC's May 2018 decision. The decision pertained to the $18,580.00 debt, but referenced only the DMC's September 2015 letter, which pertained to the prior debt, not the $18,580.00 debt. Thus, there is no evidence in the claims file and no evidence in COWC's files to show that the Veteran was ever notified of the $18,580.00 debt or notified of his due process rights with regard to that debt. The Board finds the lack of any proof that VA notified the Veteran of the debt at issue would make it fundamentally unfair to deem a request for waiver untimely. Under applicable criteria, a request for waiver of an indebtedness shall only be considered if made within 180 days following the date of a notice of indebtedness to the debtor. The 180-day period may be extended if the individual requesting waiver demonstrates, as a result of 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. If the debtor does substantiate there was such a delay in the receipt of the notice of indebtedness, the 180-day period shall be computed from the date of the debtor's actual receipt of the notice of indebtedness. 38 U.S.C. § 5302(a); 38 C.F.R. § 1.963(b)(2). In this case, because VA has no documentation to show when, or if, the Veteran was properly notified of the $18,580.00 debt, the Veteran cannot be held to the 180-day limit for filing the waiver request. Due to the circumstances present in this case, the Board accepts the Veteran's request for a waiver as timely. To this extent only, the Veteran's appeal is granted. REASONS FOR REMAND Due to the Board's decision, above, the matter of whether waiver of recovery of the overpayment at issue is appropriate must now be adjudicated by the COWC on the merits. Further, several years has passed since the Veteran's submission of an FSR. It is likely that his financial situation has changed. On remand, the Veteran should also be offered the opportunity to submit an updated FSR. This matter is REMANDED for the following action: 1. Obtain a complete and current financial status report from the Veteran. 2. Forward the Veteran's waiver request to the appropriate office, presumably COWC, to adjudicate the issue of waiver of recovery of an overpayment of VA pension benefits in the amount of $18,580.00 on the merits. 3. If the waiver claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response and then the matter returned to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.