Citation Nr: 22016487 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 18-30 628 DATE: March 22, 2022 REMANDED Whether an overpayment of education benefits under Chapter 33 of Title 38, United States Code, (also known as the Post-9/11 GI Bill), in the amount of $6,414.20 is valid. Waiver of recovery of overpayment of Post 9/11 GI Bill benefits in the amount of $6,414.20. REASONS FOR REMAND The Veteran served on active duty from July 2007 to July 2011. The case is on appeal from a January 2018 decision that determined that the Veteran was overpaid in the amount of $6,414.20 for education benefits under the Post 9/11 GI Bill. In a June 2018 VA Form 9, the Veteran requested a Board hearing. A Board hearing was scheduled for February 2022. Nonetheless, in January 2021, the Veteran submitted a statement requesting cancellation of her Board hearing request with respect to this claim. This was confirmed by a February 2022 statement from the Veteran's representative. Thus, the Board finds that the Veteran request for a hearing is withdrawn. 38 C.F.R. § 20.704(e). 1. Whether an overpayment of Post-9/11 GI Bill in the amount of $6,414.20 is valid. At the outset, the Board notes that "in the first instance of withdrawal from a course or courses for which the eligible individual received educational assistance, VA will consider mitigating circumstances to exist with respect to the withdrawal of a course or courses totaling no more than six semester hours or the equivalent." 38 C.F.R. § 21.9635(b). VA regulation further provides that "[i]f mitigating circumstances are considered to exist in accordance with this paragraph, VA will terminate or reduce educational assistance effective the end of the month during which the withdrawal occurred." Id. In other words, veterans who withdraw for the first time from an educational course paid for using Post-9/11 GI Bill benefits are entitled to receive one-time forgiveness of educational debt of up to 6 total credit hours without being required to present evidence of mitigating circumstances in order to avoid being required to repay the overpayment created by this withdrawal. Here, the Veteran received, in pertinent part, $6,289.20 for housing allowance; and $125 for books and supplies for an added total of $6,414.20. The foregoing amounts correspond to a 3-credit college course from October 23, 2017 to December 16, 2017, at the DeVry University in Fremont, California. In January 2018, the university informed VA that the Veteran had withdrawn from the course effective November 22, 2017, that is, the day before the start of the school semester. The January 2018 change in enrollment status notification only noted "withdrawal before beginning of term;" however, without any details surrounding the Veteran's withdrawal. VA then informed the Veteran that, due to her withdrawal, she must reimburse the amount of $6,414.20. The Veteran asserts that she should not be responsible for the overpayment for books and supplies and housing allowance as she attended 7 out of 8 sessions of the course, that her withdrawal was based on the school's own prerogative and involuntary one as she failed to turn in a final assignment to complete the course; and that the school should have, in any case, certified her class as "failed" but not a withdrawal. In her May 2018 notice of disagreement (NOD), the Veteran asserted that during the last week of the course she had to travel and be away for a month. Nonetheless, while she had planned and prepared to finish the coursework remotely, her laptop computer "crashed" and she did not have access to Wi-Fi from her location. This did not allow her to finish the class, thus failing it. The Veteran further noted that she contacted the student support center at DeVry University; however, was told that the was the institution's internal policy on VA enrollments and that although they were in the process of revising such policy to avoid creating debts to veteran students, they were not able to recertify her enrollment status at the time. In light of the foregoing, the Veteran maintains that she should not be responsible for the overpayment. Neither the January 2018 letter to the Veteran informing the overpayment nor the May 2018 statement of the case (SOC) noted, mentioned, or appear to have considered any mitigating circumstances as maintained by the Veteran. It seems to appear that VA limited consideration to the withdrawal, without explaining why the provisions set forth in 38 C.F.R. § 21.9635(b) were not applicable. After review of the Veteran's education case file, the Board notes that the Veteran began to use her Chapter 33 benefits in 2011. Thereafter, the Veteran has never withdrawn nor there is evidence that overpayments due to education benefits have had to be waived in the past. Therefore, the withdrawal corresponding to the October 23, 2017 to December 16, 2017, school term seems to be the Veteran's first actual instance of withdrawal, which also appears to have been due to mitigating circumstances. In light of the above, the Board finds that a remand is warranted for further development and adjudication pursuant to the provisions set forth in 38 C.F.R. § 21.9635(b) regarding the first instance of withdrawal from a course. 2. Waiver of recovery of overpayment of Post 9/11 GI Bill benefits in the amount of $6,414.20. With respect to the issue of waiver of recovery of the overpayment, the Board notes that the Debt Management Center (DMC) first notified the Veteran of her debt in April 2018. In her May 2018 NOD, the Veteran asserted that the "extenuating circumstances [surrounding her case] are a valid reason not to have the debt." Here, the Board finds that, liberally construed, the Veteran's pleadings in her May 2018 NOD included a request for waiver of recovery of the overpayment of educational assistance debt. While not an express request, her statement can be easily construed as a request to have her debt waived, clearly meaning that she does not believe she should repay the debt accrued due to her involuntary withdrawal based on the school's own strict policies. In the May 2018 SOC, the RO instructed the Veteran to request a waiver of the debt by contacting the DMC within 180 days from the notification from the DMC. However, based on the Veteran's May 2018 waiver request, the RO should have instead referred the matter to the COWC for initial review of this waiver request as that was within 180 days. As the waiver issue has not yet been referred to the COWC, the issue is not ripe for appellate consideration and the matter must be remanded to the COWC for adjudication in the first instance. See 38 C.F.R. § 19.9(b); see also 38 C.F.R. § 1.911(c)(1). The matters are REMANDED for the following action: 1. Undertake all necessary efforts to obtain from the certifying official at the DeVry University of California information with respect to the circumstances surrounding the Veteran to be deemed as "withdrawn" from October 23, 2017 to December 16, 2017, for the entire school term, to include an assessment of the Veteran's statements that the involuntary withdrawal was due to school policies, despite the fact that she attended 7 out of 8 sessions and only failed to submit her final assignment. Efforts to obtain such information should be documented in the claims file. Once all development has been completed, the RO should address the Veteran's assertions, to include consideration of the first instance of withdrawal provisions set forth in 38 C.F.R. § 9635(b) and upon consideration of the reasons and bases for remand set forth above. 2. In the event that there still remains a debt, refer the Veteran's request for a waiver of recovery of overpayment of education benefits in the amount of $6,414.20 to the COWC for adjudication of the claim in the first instance. RYAN T. KESSEL 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.